U.S. v. Jimenez-Torres

• Decision Date: 11 January 2006
• Docket Number: No. 03-1138.,03-1138.
• Citation: 435 F.3d 3
• Court: U.S. Court of Appeals — First Circuit
• Parties: UNITED STATES of America, Appellee, v. Héctor JIMÉNEZ-TORRES, Defendant, Appellant.

435 F.3d 3

UNITED STATES of America, Appellee, v. Héctor JIMÉNEZ-TORRES, Defendant, Appellant.

No. 03-1138.

United States Court of Appeals, First Circuit.

Heard June 10, 2005.

Decided January 11, 2006.

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Marlene Aponte Cabrera, for appellant.

Sonia I. Torres-Pabon, Assistant United States Attorney with whom H.S. Garcia, United States Attorney, Nelson Pérez-Sosa, United States Attorney, and German A. Rieckehoff, Assistant United States Attorney, were on brief, for appellee.

Before TORRUELLA, LIPEZ, and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

Defendant Héctor Jiménez-Torres was convicted of violating the Hobbs Act, 18 U.S.C. § 1951(a), and using a firearm in the commission of a violent federal felony (i.e., violating the Hobbs Act) that resulted in a death, 18 U.S.C. § 924(j)(1). The conviction stemmed from Jiménez's participation in a home invasion, robbery, and murder of a gas station owner in Puerto Rico. Jiménez appeals his convictions and sentence. We affirm.

I.

We present the evidence in the light most favorable to the verdicts. See United States v. Nguyen, 246 F.3d 52, 53 (1st Cir.2001).

Jiménez joined with a group of five other individuals to rob a home in Juana Diaz, Puerto Rico. The leader of the group was an individual known as "Petete," who selected the house to rob. The owner of the house was Carlos Flores-Rodríguez, the sole proprietor of a local Texaco gas station that was engaged in interstate commerce. In the two months preceding the robbery, Flores' gas station purchased approximately 40,000 gallons of gasoline from the Hess Oil Refinery in the United States Virgin Islands.

On the night before the robbery, Flores' employee, Alex Lugo-Rodríguez, brought the gas station's daily receipts of approximately $600 to Flores at his home. As was his custom, Flores placed the money in a kitchen cabinet with his ring and a revolver.

During the early morning of July 9, 1997, Jiménez and his co-conspirators traveled to Flores' home, carrying two guns. They entered the house and gathered outside the upstairs room where Flores and his wife were asleep. After a few minutes, two of the conspirators brought Flores downstairs to the kitchen. Jiménez remained upstairs.

While remaining upstairs with Flores' wife, Jiménez heard a quick succession of gunshots. One of the conspirators had shot Flores, and he eventually died of his wounds. The conspirators fled but not before stealing the money that was located in the kitchen cabinet. The next day, Flores' gas station closed permanently.

After a five-day trial, the jury convicted Jiménez on the Hobbs Act and use-of-a-firearm counts. He was sentenced to 240 months in prison on the Hobbs Act count and a concurrent life sentence on the use-of-a-firearm count. As part of the statutorily mandated supervised release period imposed, the district court delegated to a probation officer the authority to decide the drug testing and treatment that Jiménez should receive.

II.

Jiménez raises five arguments on appeal. First, there was insufficient evidence that the robbery of Flores' home affected interstate commerce — a prerequisite to conviction under the Hobbs Act. Second, the jury's verdict was ambiguous on the use-of-the-firearm-count and required more lenient interpretation than was afforded by the district court. Third, the court abused its discretion by limiting his cross-examination of a government witness. Fourth, the court abused its discretion by interrupting his closing argument. Finally, the court improperly delegated to a probation officer the authority to establish the drug testing and treatment conditions of his supervised release term.

A. Hobbs Act

The Hobbs Act makes certain robberies federal offenses. See 18 U.S.C. § 1951(a). For the government to successfully prove a violation of the Hobbs Act, it must demonstrate that the robbery had an effect on interstate commerce. See id. Congress' intent in enacting the Hobbs Act was "to use all [its] constitutional power . . . to punish interference with interstate commerce by extortion, robbery, or physical force." Stirone v. United States, 361 U.S. 212, 215, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). Given the statute's broad sweep, even a de minimis effect will suffice to meet the commerce element. See United States v. Capozzi, 347 F.3d 327, 335 (1st Cir.2003). Where, as in this case, the crime concerns the robbery of a home rather than of a business, we approach the task of applying the de minimis standard with some caution, lest every robbery (which by definition has some economic component) become a federal crime. See United States v. Rodriguez-Casiano, 425 F.3d 12, 13 (1st Cir.2005).

The government offered two ways in which the robbery of Flores' home affected interstate commerce. First, Flores' murder led to the closing of the gas station, a business which had been engaged in interstate commerce. Second, the robbery depleted the assets available to the gas station to participate in interstate commerce. Jimenéz asserts that the government did not present sufficient evidence of either effect.¹

We review challenges to the sufficiency of evidence de novo, although we take the evidence in the light most favorable to the verdict. See United States v. Hernandez, 146 F.3d 30, 32 (1st Cir.2000). Sufficient evidence may be comprised of direct or circumstantial evidence, or any combination of the two. See United States v. Patel, 370 F.3d 108, 111 (1st Cir.2004). "The test is whether the evidence, construed favorably to the government, permitted rational jurors to conclude, beyond a reasonable doubt, that [Jiménez] was guilty as charged." See United States v. Sebaggala, 256 F.3d 59, 63 (1st Cir.2001).

The government may demonstrate an effect on commerce by proving that a robbery resulted in the closing of a business engaged in interstate commerce. See United States v. Vega Molina, 407 F.3d 511, 527 (1st Cir.2005) (sustaining Hobbs Act conviction where the evidence showed that the defendants' action caused a business operating in interstate commerce to shut down temporarily); United States v. Cruz-Rivera, 357 F.3d 10, 14 (1st Cir.2004) (doubting "that there is any serious claim of a constitutionally insufficient interstate commerce connection where a robbery directly results in the shutting down of an interstate business"); see also United States v. Nguyen, 155 F.3d 1219, 1225 (10th Cir.1998)(holding that effect on commerce in Hobbs Act prosecution was established where, after robbery, business steadily declined and eventually closed); United States v. Guerra, 164 F.3d 1358, 1361 (11th Cir.1999) (similar); United States v. Jennings, 195 F.3d 795, 802 n. 8 (5th Cir.1999) (similar). This so even if the robbery is of a business owner rather than the business itself. United States v. Diaz, 248 F.3d 1065, 1088 (11th Cir.2001).

To demonstrate this effect on commerce, the government had to show that the gas station was engaged in interstate commerce and that Flores' murder caused the station to close. See Vega Molina, 407 F.3d at 527. The evidence that the gas station participated in interstate commerce was straightforward. The Texaco general manager for the area in which Flores' gas station operated testified that, in the two months preceding Flores' murder, the station had purchased approximately 40,000 gallons of gasoline, all of which originated from a refinery located in the United States Virgin Islands.² This evidence was sufficient to establish that the gas station engaged in interstate commerce. See Capozzi, 347 F.3d at 337 (holding that evidence that car dealer purchased cars from out of state established sufficient connection to interstate commerce); United States v. Diaz, 248 F.3d 1065, 1091 (11th Cir.2001) (holding that evidence that gas station purchased gasoline from out of state established sufficient connection to commerce).

To establish that Flores' murder was the cause of the gas station's closing, the government offered the testimony of Flores' employee, Alex Lugo-Rodríguez. Lugo testified that he worked at the gas station the day before the murder and that, when he arrived for work the next day, the gas station was closed and he learned that "something had happened" to Flores. According to Lugo, the gas station did not subsequently reopen.

While there was no direct testimony that Flores' murder caused the gas station to close, Lugo's testimony provided strong circumstantial evidence to that effect. The timing of the closing — the day after the murder — coupled with its permanence, allowed the jury to conclude that the murder caused the closing.³

The government also presented adequate evidence to prove that the robbery depleted the gas station's assets. Depletion of the assets of a business engaged in interstate commerce is a common method for demonstrating that a robbery had an effect on interstate commerce. See Rodriguez-Casiano, 425 F.3d at 13. This is so even if the business's assets were stolen from a home. See id.

There was testimony that the stolen money consisted of the gas station's daily receipts which, as was his custom, Flores stored in his kitchen cabinet. From this testimony, the jury could have reasonably determined that the robbery reduced the gas station's revenue by $600, thereby depleting the assets that station had available to participate in interstate commerce. See Capozzi, 347 F.3d at 337 (government demonstrated a de minimis effect on commerce where defendant deprived business of money, thereby depleting the assets that could have been used to participate in interstate commerce); Nguyen, 246 F.3d at 54 (money stolen from a business engaged in interstate commerce establishes jurisdictional element of Hobbs Act violation); see also United States v. Devin, 918 F.2d 280, 293-94 (1st Cir.1990) (Hobbs Act jurisdiction was established where money was stolen from the personal funds of a business owner because the jury...