U.S. v. Nelson
| Decision Date | 26 February 1998 |
| Docket Number | 96-50412 and 96-50442,Nos. 95-50455,96-50417,96-50396,s. 95-50455 |
| Parties | 48 Fed. R. Evid. Serv. 1184, 98 Cal. Daily Op. Serv. 1360, 98 Daily Journal D.A.R. 1903 UNITED STATES of America, Plaintiff-Appellee, v. Lamont Benedict NELSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Keith Lamar LOTT, aka Kevin Moore, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Kimberly Nichol EDWARDS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Bobby Lee SEHORN, aka Lamar Athens, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Sherri W. Hobson, Assistant United States Attorney, San Diego, California, for plaintiff-appellee.
Michael L. Crowley, San Diego, California, for defendant-appellant Lamont Benedict Nelson.
Douglas C. Brown, San Diego, California, for defendant-appellant Keith Lamar Lott.
Lee Anne Mattson, San Diego, California, for defendant-appellant Kimberly Nichol Edwards.
Alex Landon, San Diego, California, for defendant-appellant Bobby Lee Sehorn.
Appeal from the United States District Court for the Southern District of California; Irma E. Gonzalez, District Judge, Presiding. D.C. Nos. CR-95-00072-IEG, CR-95-0072-1-IEG, CR-95-0072-5-IEG, CR-95-0072-2-IEG.
Before: BRUNETTI, HALL, and RYMER, Circuit Judges.
Appellants robbed two J. Jessop's Jewelry stores in San Diego on July 11 and August 12, 1992. The robberies were carefully planned operations. Members of the robbery crew posed as customers inside each store. Once these crew members were in position, another member of the crew entered and brandished a pistol. The rest of the crew then sprung into action, cleaning-out each store in a matter of minutes and escaping in stolen vehicles. Appellants managed to steal a considerable amount of jewelry and watches in this manner, most of which the stores obtained from out-of-state suppliers.
Stemming from the July 11 robbery, appellants Lott, Sehorn, Nelson, and Edwards were charged in federal court with aiding and abetting the interference with interstate commerce by robbery, in violation of 18 U.S.C. §§ 1951(a) and 2 [Count 1], and with aiding and abetting the use and carrying of a firearm during the commission of a crime of violence, in violation of 18 U.S.C. § 924(c) [Count 2]. Stemming from the August 12 robbery, appellants Lott, Nelson, and Edwards were charged with the same two crimes [Count 3 alleging the § 1951 violation and Count 4 alleging the § 924(c) violation]. Sehorn was not involved in the August 12 robbery.
After a jury trial, appellants Edwards and Lott were found guilty on all four counts. Appellant Sehorn was found guilty of counts one and two. Appellant Nelson was found guilty of counts three and four, and was acquitted of counts one and two.
Appellants appeal their convictions on numerous grounds. The district court had jurisdiction over the trial under 18 U.S.C. § 3231. This court has jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm in part and reverse in part.
Appellants argue that an under-representation of Hispanics by 3.9 percent in the 1995 jury wheel for the Southern District of California violated the "fair cross-section" requirement of the Sixth Amendment. 1 The district court found that a 3.9 percent absolute disparity between the proportion of Hispanics in the community and the proportion in the jury pool was legally insufficient to state a Sixth Amendment claim.
The Supreme Court has mandated a three-pronged test for establishing a prima facie violation of the Sixth Amendment's "fair cross-section" requirement: 1) that the group alleged to be excluded is a "distinctive" group in the community; 2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and 3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process. See Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668-69, 58 L.Ed.2d 579 (1979).
It is undisputed that Hispanics are a "distinctive" group for purposes of Sixth Amendment analysis. Thus, appellants satisfied the first prong of the Duren test. However, the district court held that appellants did not satisfy the second prong.
This court has held that "[t]he second prong of the Duren test requires proof, typically statistical data, that the jury pool does not adequately represent the distinctive group in relation to the number of such persons in the community." United States v. Esquivel, 88 F.3d 722, 726 (9th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 442, 136 L.Ed.2d 339 (1996). This court measures representation by the absolute disparity between the proportion of the group in the community population and the proportion represented on the master jury wheel. See United States v. Sanchez-Lopez, 879 F.2d 541, 547 (9th Cir.1989). Previous Ninth Circuit cases have held that absolute disparities even greater than the one present here did not violate the second prong of the Duren test. See Esquivel, 88 F.3d at 727 (); United States v. Suttiswad, 696 F.2d 645, 649 (9th Cir.1982) (). Thus, the absolute disparity in this case is insufficient to make out a prima facie claim under the Sixth Amendment. 2
Appellants were convicted for the robberies under the Hobbs Act. The Hobbs Act provides federal criminal penalties for "[w]hoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce" by robbery, extortion, or physical violence. 18 U.S.C. § 1951(a).
Appellants argue that after 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 only violated if the government shows a substantial effect on interstate commerce. However, this court has expressly held that the Lopez decision did not overturn the Ninth Circuit's rule that the government need only show a de minimis effect on interstate commerce for purposes of federal jurisdiction under the Hobbs Act. United States v. Atcheson, 94 F.3d 1237, 1241 (9th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 1096, 137 L.Ed.2d 229 (1997). 3 Moreover, a de minimis standard is consistent with the language of the Hobbs Act, which mandates penalties for whoever "in any way or degree" obstructs interstate commerce.
Applying the de minimis standard, we find that the government has met its evidentiary burden. 4 Each J. Jessop's Jewelry store was a commercial business actively engaged in interstate commerce at the time of the robberies. Trial testimony established that J. Jessop's stores conducted approximately 95 percent of their business with out-of-state firms. Over 90 percent of the merchandise sold by J. Jessop's was manufactured outside the state of California. J. Jessop's itself is owned by a company incorporated in Delaware, and its parent company is based in Toronto, Canada. 5 The robberies had at least a de minimis effect on interstate commerce.
Appellants claim that the district court erred in not adopting Sehorn's proposed jury instruction regarding guilt for aiding and abetting a crime under 18 U.S.C. § 1951(a). Sehorn proposed that the jury be instructed that the government must prove beyond a reasonable doubt that he "knowingly and intentionally aided and abetted the commission of the robbery ... and assisted in its commission in an active way, knowing that it had an impact on interstate commerce."
The only element of Sehorn's proposed jury instruction that was not included in the actual jury instruction was the knowledge that the crime had an impact on interstate commerce. However, a defendant need not know that his or her crime will have an impact on interstate commerce in order to be found guilty under the Hobbs Act. See United States v. Jarrett, 705 F.2d 198, 204 (7th Cir.1983) (); United States v. Boston, 718 F.2d 1511, 1516-17 (10th Cir.1983) (); cf. Atcheson, 94 F.3d at 1243 () (citations omitted).
Thus, we hold that the aiding and abetting instruction was proper because defendants need not have known that their actions would actually affect interstate commerce.
Title 18 U.S.C. § 924(c) provides additional federal criminal penalties for using a firearm during "any crime of violence or drug trafficking crime ... for which he may be prosecuted in a court of the United States." Appellants Sehorn and Edwards argue that there was insufficient evidence to convict them of aiding and abetting the use of a firearm in violation of § 924(c) during the July 11 robbery. Appellants Lott, Nelson, and Edwards make similar arguments regarding the August 12 robbery.
There is sufficient evidence to support a conviction if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See ...
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