U.S. v. Hebert, 96-41240

Decision Date15 December 1997
Docket NumberNo. 96-41240,96-41240
Citation131 F.3d 514
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Scyrus Dion HEBERT, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

John B. Stevens, Jr., Beaumont, TX, for Plaintiff-Appellee.

G. Patrick Black, Frank Warren Henderson, Amy R. Blalock, Tyler, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Texas.

Before DeMOSS and DENNIS, Circuit Judges, and ROSENTHAL *, District Judge.

PER CURIAM:

Defendant-appellant Scyrus Dion Hebert was convicted in the Eastern District of Texas on four counts of bank robbery, eleven counts of use of a firearm during the course of a violent crime, and seven counts of interference with commerce by committing robbery, in violation of the Hobbs Act. 1

Hebert appeals his convictions on the following grounds: (1) the Hobbs Act is unconstitutional under United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995); (2) the district court improperly instructed the jury as to the Hobbs Act; (3) there was insufficient evidence that Hebert knowingly affected interstate commerce or that Hebert's robberies had a substantial effect on interstate commerce, necessary to support a conviction under the Hobbs Act, and insufficient evidence that Hebert committed the robberies alleged in the indictment, or used a firearm in connection with any of the robberies; (4) Hebert's arrest was without probable cause, in violation of the Fourth Amendment; and (5) the district court erred by imposing consecutive sentences for each firearm count.

We affirm the district court on all of Hebert's points of appeal, for the reasons stated below.

I. Factual Background
A. The Bank of America Robbery

On March 21, 1996, a branch of the Bank of America in Port Arthur, Texas, was robbed at approximately 1:55 p.m. At trial, witnesses described the robber as a black male, with a short beard, wearing dark clothing and gloves. The robber had what appeared to be a black nylon stocking and a red bandanna over his head. The robber was armed with a chrome-plated handgun. The witnesses testified that the robber burst into the bank, jumped on and over a teller counter, and took cash from several teller drawers. The robber then ran out the front door.

Another witness, Jim Shoffner, testified at trial that during the afternoon of March 21, 1996, he was in his delivery truck parked a block from the bank. At about 2:00 p.m., Shoffner saw a man running toward him from the direction of the bank. Shoffner noticed that the man was carrying something that appeared to be spraying red paint. Shoffner testified that he remembered that banks often use dye-emitting devices to mark stolen items. Shoffner heard a car travelling in his direction at a high rate of speed. Shoffner noted the rear license plate number of the car, which he later told police was FRK 93M. Shoffner also noticed that the car was blue, had a vinyl top, had no front license plate, and that the trunk was held shut with what appeared to be a black cord. Shoffner thought that the car was probably a Buick, perhaps a Buick Regal.

Shoffner testified that he noticed cash lying in the street near where the blue car had been parked. He got out of his truck to pick up the cash and noticed something that looked like a "battery pack" that might emit dye. Shoffner left the "battery pack" in the street and brought the cash to the bank. At the bank, Shoffner telephoned the Port Arthur police. Gene Christian, a Port Arthur police officer, went to the place where Shoffner picked up the money and found an exploded dye-pack and a piece of a twenty-dollar bill.

Patsy Byers testified at trial that she heard reports of the robbery and a description of the "getaway" car on her police scanner radio. As Byers drove by Alford's Supermarket, located about seven or eight miles from the bank, she noticed a car parked at a nearby gas station that matched the description of the car given on the radio. Byers stopped at Alford's and called the police. Byers testified that she saw a man, whom she identified at trial as Hebert, leave the gas station, get into the car, and drive to Alford's Supermarket. Byers again called the police, using a telephone at the gas station. From the gas station, Byers watched Hebert open his trunk, "dig[] around in" it, and enter the market.

Police officer Al Gillen testified that after he heard a radio report that the "getaway" car had been sighted at Alford's, he drove to the supermarket. Gillen saw a car matching the description of the getaway car parked in the parking lot. No one was in the car. Gillen looked into the car through an open window and saw a "reddish tint" on the inside of the driver's-side door.

Officer Mark Holmes also drove to Alford's after hearing the dispatcher's report of the robbery and the witnesses' description of the robber and the car. 2 Holmes testified that at Alford's, he saw a car matching the description of the car broadcast over the radio. Holmes looked through the car window and noticed a red paint-like material on the inside of the driver's-side door. Holmes saw a man, later identified as Hebert, leave the store and head for the car. Holmes stopped Hebert and asked his name. The suspect stated that his name was "Scyrus." Holmes asked Hebert if one of the vehicles in the parking lot was his. Hebert hesitated, then indicated the Buick. Holmes asked Hebert where he was coming from. Hebert volunteered that he lived in Beaumont, had become lost, and had had a flat tire on a nearby road. During the conversation, Holmes noticed that Hebert had a red substance on his pants and hands and was wearing black and white athletic shoes. As Hebert was talking to Holmes, officer Gillen, standing nearby, also noticed a red color on Hebert's pants leg. These details matched the dispatcher's description of the robbery suspect. Holmes detained and handcuffed Hebert.

The police officers took Jim Shoffner to the Alford's parking lot, where Shoffner identified the Buick as the vehicle he had seen driving toward him earlier that day. The police officers towed the Buick to the station, obtained a search warrant, and searched the car. Holmes testified that in the search, he saw and/or recovered a nylon woman's stocking; a sweatshirt and socks with a red dye-like substance on them; and an inflated tire.

At trial, the government presented evidence that the red substance found on Hebert, his clothes, and his car was the dye emitted during the Bank of America robbery. 3

B. The Other Robberies

A series of bank, restaurant, and liquor store robberies had taken place in the Beaumont, Texas area between November 1995 and March 1996. The businesses robbed were a Texas Commerce Bank branch, a Hardee's restaurant, a Piccadilly Cafeteria, A.J.'s Discount Liquor Store, a Lucky Liquor, Inc. Store, Debb's Liquor Store, a Mr. Gatti's restaurant, and two robberies each of the Southeast Affiliated Federal Employees Credit Union and a Popeye's Chicken restaurant. Witnesses to most of these robberies described the robber as wearing a red bandanna. The Port Arthur Bank of America robber also wore a red bandanna.

At trial, the manager of the Hardee's restaurant robbed on November 9, 1995 testified that the robber was a black male carrying a chrome-plated gun, wearing a red bandanna. The manager positively identified Hebert as the robber at trial.

An employee of the Popeye's restaurant robbed on November 8 and 12, 1995, described the robber as a black male carrying a chrome semi-automatic handgun, wearing a red bandanna. The assistant manager testified that she saw the robber during the second robbery. She also described the robber as a black male, wearing a red bandanna, carrying a silver gun.

An employee with the Piccadilly's Cafeteria that was robbed on November 9, 1995 testified that the robber was a black male wearing a red bandanna. The employee testified that the robber held a chrome-plated semi-automatic pistol, turned to the side.

The Southeast Affiliated Federal Employees Credit Union was robbed twice, on November 14, 1995, and January 2, 1996. A teller testified that the first robbery was committed by a black male carrying a small silver-chromed gun, and that the second robbery was committed by the same person carrying a similar gun and wearing a red bandanna and black and white tennis shoes. The teller also observed from a videotape and photographs of the robbery that the robber held the gun turned to the side. Another witness present at the first credit union robbery testified that the robber was a black male, carrying a small, silver, shiny pistol, and wearing a nylon stocking over his head and a red scarf or bandanna. The president of the credit union testified that Hebert had been a customer of the credit union from March 9, 1992 to July 16, 1993.

A teller at the Texas Commerce Bank that was robbed on November 29, 1995 testified that the robber was a black male carrying a chrome semi-automatic pistol. Another teller testified that the robber was a black male, carrying a silver gun, and wearing a red bandanna. The manager of a business located next to the Texas Commerce Bank saw a black male wearing black and white shoes, holding a chrome-plated handgun turned sideways, running away after the robbery.

An identification technician specialist with the Port Arthur Police Department also testified that a shoe print from the Bank of America teller counter that the robber jumped on was similar to the print of the bottom of the shoes Hebert was wearing when he was arrested. An examiner from the FBI lab compared footprints taken from the Bank of America teller counter and the teller counter of the Texas Commerce Bank that was robbed, with Hebert's shoes. The examiner concluded that the shoes corresponded in design and physical size to the latent prints.

The manager of A.J.'s Liquor Store, robbed on February 16, 1996,...

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