U.S. v. Miles
| Citation | 122 F.3d 235 |
| Decision Date | 05 September 1997 |
| Docket Number | No. 95-10001,95-10001 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Gregory Lynn MILES, and Gerald Jehoram Gustus, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Delonia Anita Watson, Paul E. Gartner, Jr., U.S. Attorney's Office, Dallas, TX, for Plaintiff-Appellee.
Gerhard Ernst Kleinschmidt, Fort Worth, TX, for Gregory Lynn Miles.
Peter Michael Fleury, Federal Public Defender's Office, Fort Worth, TX, Ira Raymond Kirkendoll, Federal Public Defender's Office, Dallas, TX, for Gerald Jehoram Gustus.
Appeal from the United States District Court for the Northern District of Texas.
Before DeMOSS and DENNIS, Circuit Judges, and DUPLANTIER, District Judge. *
In this appeal of their respective criminal convictions, Appellants raise three issues. First, they argue that the district court improperly instructed the jury as to the Hobbs Act; second, they argue that they were improperly subjected to double jeopardy; and, third, they argue that, under the Supreme Court's decision in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), the Hobbs Act is unconstitutional on its face, or as applied in this case, and that the evidence is insufficient to support a finding of "substantial effect" on commerce as they argue is required by Lopez. For the following reasons, we affirm the judgments of the district court.
Appellants/Defendants Gregory Lynn Miles and Gerald Jehoram Gustus ("Defendants") were indicted for conspiracy, four counts of interference with interstate commerce by robbery, and four counts of firearm violations for their participation in a series of robberies occurring in Tarrant County, Texas over a two month period. These Tarrant County robberies involved three McDonald's restaurants, a Taco Bueno restaurant, and a Colters's Barbecue and Grill. Gustus alone was indicted for the robbery and firearm violation as to one of the five robberies involved. The following facts were introduced at trial concerning each of the robberies and are not disputed on appeal:
On October 18, 1991, shortly after 7:00 a.m., the Defendants entered a McDonald's Mini-Mac on North Watson Road ("North Watson" store) in Arlington, Texas. At gunpoint, they removed approximately $1,500 from the restaurant's safe. The Defendants were identified at trial as the robbers by the restaurant manager Jenette Johnson and another employee. Johnson also testified that the North Watson store is located near Highway 360, a highway which connects Interstate Highway 20 and Interstate Highway 35. She further testified that the restaurant is located one-half mile from the Six Flags Over Texas amusement park. According to Johnson, the store was closed for approximately one hour following the robbery.
On November 7, 1991, Gustus robbed a second McDonald's located on East Division Street ("East Division" store) in Arlington, Texas. According to the testimony of a McDonald's employee, Esmerelda Graciano, the store was robbed upon its opening at 6:00 a.m. by two men fitting the physical descriptions of the Defendants. Graciano testified that at least one of the assailants had a gun during the robbery. The government introduced into evidence a written confession from Gustus regarding all five of the robberies, including the robbery of the East Division store. 1
On December 7, 1991, Defendants entered and robbed a third McDonald's restaurant located in Euless, Texas ("Euless" store). The store manager, Regina Woodley, testified that the Defendants, whom she identified at trial, entered the restaurant shortly after it opened at 6:00 a.m. and, at gunpoint, took approximately $3,000. Woodley further testified that the store closed for a period of time following the robbery 2 and that the Euless store is located approximately five minutes from the Dallas/Fort Worth International Airport.
In connection with the three McDonald's robberies, the government introduced the testimony of Richard Matson, the field purchasing manager for the Dallas and Oklahoma regions of McDonald's. Matson testified that, at the time of the robberies, the North Watson and Euless stores were company-owned stores that purchased many of their ingredients and supplies from out-of-state locations. He also stated that the employee paychecks for the company stores are received from the McDonald's headquarters in Chicago, Illinois, and that the stores send their money and receipts to the Chicago office.
Matson testified that the East Division store was a franchise store at the time of its robbery and that franchise stores obtain their food from the same out-of-state vendors as the company stores. He also testified that the franchise stores send rent payments and service fees to the McDonald's headquarters in Chicago.
On cross-examination, Matson stated that, to his knowledge, the robberies of the three McDonald's restaurants in Tarrant County did not affect the shipment of goods from out of state to the distribution centers in Texas. He further admitted that the employee paychecks, which originated out of state, were not, to his knowledge, disrupted because of the robberies.
On November 22, 1991, Defendants entered a Colter's Barbecue and Grill ("Arlington Colter's") shortly after 7:30 a.m. and removed approximately $1,300 at gunpoint from the restaurant safe. The robbery occurred during a food delivery prior to the restaurant's opening. According to the testimony of the restaurant manager, Susan Brenner, the delivery driver and employees were detained in the restaurant cooler during the robbery. Brenner and another employee identified the Defendants as the perpetrators. Brenner also testified that the restaurant is located in Arlington, Texas, and that it is approximately one-half block from Interstate Highway 20.
Payton Cullum, a regional vice-president of Colter's, testified that, at the time of the robbery, the Arlington Colter's purchased many of its products from out-of-state suppliers in accordance with the company purchasing policy. Cullum also stated that Colter's has catered at least one event out of state (in New York), even though its restaurants are located solely in Texas. He further testified that money received from sales at the Colter's restaurants is used, in part, to purchase food and supplies from out-of-state vendors. Cullum testified that the money taken during the robbery of the Arlington Colter's would have been used for such purchases.
On cross-examination, Cullum stated that the robbery of the Arlington Colter's did not stop the company from purchasing its products from out-of-state suppliers. Further, Cullum admitted that, because the restaurant opened on time, the robbery did not stop travelers on nearby Interstate Highway 20 from being able to eat at the Arlington Colter's.
On November 26, 1991, Defendants entered a Taco Bueno ("Arlington Taco Bueno") at 6:00 a.m. during a food delivery. At gunpoint, the Defendants removed approximately $1,200 from the restaurant's safe. The store manager, Jon Brdecka, identified the Defendants as the robbers. Brdecka also testified that the restaurant was not yet open for business at the time of the robbery. According to Brdecka, he and the delivery driver were detained in the restaurant cooler for a short period of time during the robbery. Brdecka also testified that the restaurant is located on South Cooper in Arlington, Texas, approximately two miles from Interstate Highway 20. He also stated that the Arlington Taco Bueno serves people from out of state, that he has occasionally noticed out-of-state license plates in the parking lot, and that his paycheck is received from out of state.
John Dunion, the vice-president in charge of purchasing for the Black Eyed Pea restaurants, which owns Taco Bueno, testified that Taco Bueno restaurants are located in Texas and Oklahoma and that the restaurants purchase many of their food products from out-of-state vendors. Dunion testified that the Arlington Taco Bueno purchases its food from out-of-state vendors in accordance with the company guidelines. Additionally, he testified that the money from the Arlington Taco Bueno is deposited in a local bank and later wired to a New York bank and held in commercial paper. Dunion stated that money stolen from the Arlington Taco Bueno affected the amount wired from Texas to New York for that deposit. On cross-examination, Dunion testified that the robbery of the Taco Bueno did not change the out-of-state purchasing habits of the company.
The Defendants were first charged in an eleven-count indictment filed on April 7 Upon remand, the case was reassigned to United States District Judge Terry Means who quashed the original indictment without prejudice on May 24, 1994. Judge Means noted that the government failed to allege the requisite effect on interstate commerce, an essential element of a Hobbs Act violation under 18 U.S.C. § 1951.
1992. 3 At the time of the first federal indictment, Defendants were in the custody of the State of Texas awaiting trial on state charges for other robberies. 4 The federal indictment charged them with conspiracy to interfere with commerce by robbery in violation of 18 U.S.C. § 1951, four counts of interference with commerce by robbery in violation of 18 U.S.C. § 1951, and four counts of using and carrying a firearm during and in relation to the commission of a crime of violence in violation of 18 U.S.C. § 924(c). 5 The Defendants each initially agreed to plead guilty to three of the eleven counts in the indictment in exchange for dismissal of the remaining counts. 6 The plea agreements, however, were subsequently rejected by United States District Judge John McBryde as undermining the statutory purpose of sentencing, 7 and the Defendants' case was set for trial. On the day the trial was to begin, the Defendants entered into a second plea agreement in which they each
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