U.S. v. Harrington, 96-3060

• Decision Date: 25 March 1997
• Docket Number: No. 96-3060,96-3060
• Parties: UNITED STATES of America, Appellee, v. Leo Darryl HARRINGTON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1460

108 F.3d 1460

323 U.S.App.D.C. 431

UNITED STATES of America, Appellee, v. Leo Darryl HARRINGTON, Appellant.

No. 96-3060.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 19, 1997.

Decided March 25, 1997.

Thomas G. Ross argued the cause and filed the brief for appellant.

Anne E. Pings, Assistant United States Attorney, argued the cause for appellee, with whom Eric H. Holder, Jr., United States Attorney, John R. Fisher and Thomas J. Tourish, Jr., Assistant United States Attorneys, Washington, DC, were on the brief.

Before: WALD, SENTELLE and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

Dissenting opinion filed by Circuit Judge SENTELLE.

WALD, Circuit Judge:

On December 21, 1995, a jury found Leo Darryl Harrington guilty of three criminal counts for his role in the armed robbery of a Roy Rogers restaurant on Georgia Avenue, N.W. in Washington, D.C. Harrington now challenges his conviction and sentencing on three grounds. First, he argues that the district court erred in denying his motion for a judgment of acquittal because the evidence was insufficient to prove beyond a reasonable doubt that the robbery had affected interstate commerce or that he had aided and abetted the use of a firearm during a crime of violence. Second, he claims that the district court's instructions on the Hobbs Act robbery count constituted plain error because they permitted the jury to return a guilty verdict on the basis of findings that are inadequate for a constitutional application of the statute. Lastly, Harrington alleges that the district court abused its discretion by permitting the jury to reach a verdict with eleven members, after a juror had been excused for good cause. We reject these challenges, and affirm Harrington's convictions and sentencing.

The court did not err in denying Harrington's motion for a judgment of acquittal because the evidence showing that the money lost and stolen as a result of the robbery would otherwise have been involved in interstate transactions was sufficient to support the conclusion that the robbery affected interstate commerce. Furthermore, evidence that Harrington helped his co-defendant Jimmie Lee Kennedy escape from the police and complete the robbery during which time Kennedy brandished a weapon and fired it at pursuing police officers was sufficient to support the conclusion that he had aided and abetted Kennedy's use of a firearm during and in relation to a crime of violence. The court's instruction to the jury on the Hobbs Act robbery count did not constitute plain error because the record of the trial as a whole indicates that the jury must have understood that it could not return a guilty verdict on the Hobbs Act robbery count unless it found that the Act's interstate commerce jurisdictional requirement was satisfied. Nor did the court abuse its discretion in allowing the jury to reach a verdict with eleven members after one had been excused for good cause, because Federal Rule of Criminal Procedure 23(b) expressly authorizes courts to permit eleven-member verdicts at their discretion, and no principle embodied in the rule, the Advisory Committee notes, any legal authority of which we are aware, or fundamental principles of fairness were violated by the court's exercise of this discretion in this case.

I. BACKGROUND

Just after 7:00 on the morning of Sunday, June 25, 1995, Jimmie Lee Kennedy entered the Roy Rogers restaurant at 6514 Georgia Avenue, N.W. in Washington, D.C., jumped over the counter brandishing a handgun, and demanded that the manager give him the money from the restaurant's safe. After the manager gave him cash, including paper money and rolled coins, from the safe, Kennedy left the restaurant. As all this was happening inside the restaurant, two uniformed police officers happened to be waiting in a marked Metropolitan Police car to place an order at the restaurant's drive-through window. The officers noticed that Kennedy was clutching something and seemed startled when he saw the police car on his way out of the restaurant, so they left the drive-through line and followed him in the car. When Kennedy neared a house, one of the officers asked him if he lived there; Kennedy then drew his gun and bolted across the house's backyard, firing several shots back at the officers and slightly wounding one of them.

Meanwhile, Harrington was waiting for Kennedy one and a half blocks from the Roy Rogers in his Toyota 4-Runner, with the engine running. After Kennedy ran to the vehicle with his gun drawn and got in, still firing at the officer pursuing him, Harrington drove away. A high-speed chase through the neighborhood ensued, ending only after police forced Harrington's Toyota off the road and into a traffic signal pole; at that point A grand jury indicted Harrington on August 9, 1995, for aiding and abetting a robbery in violation of the Hobbs Act, 18 U.S.C. § 1951(a) and 2, aiding and abetting the use of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c) and 2, and resisting police officers in violation of D.C. CODE ANN. § 22-505(a). Harrington was tried before a jury between December 18 and December 21, 1995, and convicted on all counts. On April 12, 1996, the court sentenced Harrington to seventy-seven months in prison on the Hobbs Act robbery count, sixty months in prison on the § 924(c) firearm count, and between twenty months and sixty months in prison for resisting police officers; the sentences on the robbery and firearm counts to run consecutively to each other but concurrently with the sentence for resisting police officers.

[323 U.S.App.D.C. 435] Kennedy jumped out of the Toyota and pointed his gun at one of the officers, but another officer knocked him down with his car. Harrington jumped out of the crashed Toyota and fled, pursued by two police cars with their lights flashing. When one of the officers pointed a gun at him and ordered him to stop, Harrington was arrested.

II. DISCUSSION

A. The District Court's Denial of Defendant's Motion for a Judgment of Acquittal

Harrington's first challenge in this appeal is to the district court's denial of the motion for a judgment of acquittal made at the close of the government's evidence. We review a trial court's denial of such a motion de novo, considering the evidence in the light most favorable to the government and determining whether, so read, it is sufficient to permit a rational trier of fact to find all of the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Lucas, 67 F.3d 956, 959 (D.C.Cir.1995). The defendant claims that the government's evidence did not meet this standard with regard to two of the three counts of which he was convicted. We find that the government's evidence was sufficient to support the guilty verdicts, and thus the district court did not err in denying Harrington's motion for a judgment of acquittal.

1. Sufficiency of the Evidence of an Effect on Interstate Commerce

The first ground on which Harrington claims insufficiency of the government's evidence involves the charge of aiding and abetting a Hobbs Act robbery. Harrington alleges that the government failed to prove that the robbery was sufficiently connected to interstate commerce to justify the imposition against him of the federal commerce power. See Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 273-74, 4 L.Ed.2d 252 (1960) (noting that the Hobbs Act represents an exercise of the power enumerated in the Commerce Clause of the United States Constitution). The Hobbs Act makes it a federal crime to "obstruct[ ], delay[ ], or affect[ ] commerce or the movement of any article or commodity in commerce, by robbery or extortion," 18 U.S.C. § 1951(a), and defines "commerce" as "commerce within the District of Columbia, ¹ or any Territory or Possession of the United States; all commerce between any point in a State, Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction." 18 U.S.C. § 1951(b)(3).

Although on brief Harrington asserted that under United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), the government was required to show that the robbery had a "substantial" effect on interstate commerce to justify the application of the Hobbs Act, see Brief for Defendant-Appellant at 18, at oral argument he acknowledged his lack of authority for this proposition and focused instead on the question We agree with the nearly unanimous judgment of those federal courts that have reviewed this type of challenge after Lopez, that the proper question for a court reviewing a claim that the evidence was insufficient to satisfy a federal statute's "jurisdictional element" ² remains whether the evidence was sufficient to show an "explicit" and "concrete" effect on interstate commerce, Lopez, 514 U.S. at ----, ----, 115 S.Ct. at 1631, 1634, rather than a "substantial" one. See, e.g., United States v. Atcheson, 94 F.3d 1237, 1242 (9th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 1096, 137 L.Ed.2d 229 (1997); United States v. Bolton, 68 F.3d 396, 398 (10th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 966, 133 L.Ed.2d 887 (1996); United States v. Stillo, 57 F.3d 553, 558 n. 2 (7th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 383, 133 L.Ed.2d 306 (1995); United States v. Pettiford, 934 F.Supp. 479, 482 (D.Mass.1996); United States v. Wong, 1996 WL 225007, * 6 (N.D.Cal.1996); United States v. Arena, 894 F.Supp. 580, 584-85 (N.D.N.Y.1995); see also United States v. Farmer, 73 F.3d 836, 843 (8th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 2570, 135 L.Ed.2d 1086 (1996) (holding that Lopez "has no application to ...