U.S. v. Le, No. 00-11124

• Decision Date: 11 July 2001
• Docket Number: No. 00-11124
• Citation: 256 F.3d 1229
• Parties: (11th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. NGHIA LE, a.k.a. Vince Le, Defendant-Appellant
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1229

256 F.3d 1229 (11th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. NGHIA LE, a.k.a. Vince Le, Defendant-Appellant.

No. 00-11124

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

July 11, 2001

Appeal from the United States District Court for the Northern District of Florida. D. C. Docket No. 99-00023-CR-4-RH

Before HULL, RONEY and GOODWIN^*, Circuit Judges.

GOODWIN, Circuit Judge:

Nghia Le ("Le") got the idea that a Tallahassee business man kept a large supply of cash from his two nail salons at his house. He decided to employ a small band of rent-a-robbers to fly from Los Angeles, California to Tallahassee, Florida to perform a home invasion robbery. After the robbery went awry, the mercenaries talked, and Le was indicted and convicted under the Hobbs Act and for use of a firearm in connection with these crimes. He now appeals his convictions and his sentence on a variety of grounds.

The principal question before us is whether this is a federal case. We conclude that Le's actions had both potential effects and actual, de minimis effects on interstate commerce, and that the Government thus had jurisdiction to prosecute Le under the Hobbs Act. In addition, we find that the district court did not err by admitting into evidence Le's post-arrest statements and the transcripts of certain foreign-language telephone conversations. Regarding Le's sentence, we conclude that the district court properly applied a two-level car-jacking increase to his base offense level but erred in applying a seven-level firearm increase.

BACKGROUND

Kenny Nguyen ("Nguyen") and his wife owned and operated two nail salons in two separate shopping malls in Tallahassee, Florida. They ordered their manicure supplies from Georgia, spending between five and seven thousand dollars a year. At the end of each business day the Nguyens took that day's business receipts to their house. They deposited their business proceeds at a bank approximately once a week.

Le, who had been observing the apparent prosperity of the Nguyens, concluded that they likely kept substantial sums of cash from their businesses in their residence. Not wishing to perform the robbery himself, and apparently unable to enlist suitable confederates in Tallahassee, Le telephoned acquaintances in California and recruited five of them. One of these co-conspirators testified at trial that Le "told us he knew a guy that was living in Tallahassee that had a house and that he had at least a hundred to two hundred thousand dollars in cash."

Le's acquaintances traveled from California to Florida for the planned robbery. Le organized the crime, provided temporary housing for the robbers, furnished one or more weapons, and pointed out the target house. For his efforts, Le was to receive ten percent of the proceeds. The night of the robbery, he remained well away from the execution of the plan.

The five rent-a-robbers entered the Nguyens' house, bound several of the occupants, and conducted an unsuccessful search for the promised cash. Meanwhile, Nguyen, after hearing the commotion, fled the residence with that day's business receipts, which amounted to between six and eight thousand dollars. The Californians later left the house and drove away in a car belonging to Mrs. Nguyen, the only other fruit of their labors being a stolen wristwatch. They soon thereafter abandoned the car and fled in the car of one of the co-conspirators. The five Californians were arrested the next morning. Two weeks after the robbery, Nguyen sold his manicure business. He subsequently reopened the nail salons in two new locations.

Following a lengthy investigation, Le was indicted on three counts: 1) conspiring to obstruct interstate commerce by robbery, in violation of the Hobbs Act, 18 U.S.C. §§ 1951 and 1952; 2) obstructing interstate commerce, and attempting to do so, by robbery, in violation of the Hobbs Act, 18 U.S.C. §§ 1951 and 1952; and 3) using or carrying a firearm while obstructing interstate commerce or attempting to do so, in violation of 18 U.S.C. § 924(c).¹

A jury found Le guilty on all three counts. The district court sentenced Le to a custodial sentence of 322 months - consisting of consecutive sentences of 240 months for Count One, 22 months for Count Two, and 60 months for Count Three - together with three years of supervised release and an order of restitution.

DISCUSSION

I. Jurisdiction Under the Hobbs Act

Le's primary contention concerning his convictions on Counts One and Two is that the Government lacked jurisdiction to prosecute him under the Hobbs Act because it failed to prove that his actions bore a sufficient connection to interstate commerce. This Court reviews de novo a challenge to the sufficiency of the evidence concerning whether a robbery had a sufficient effect on interstate commerce to support a conviction under the Hobbs Act. See United States v. Guerra, 164 F.3d 1358, 1359 (11th Cir. 1999) (citing United States v. Keller, 916 F.2d 628, 632 (11th Cir. 1990)). "[W]e consider that evidence in the light most favorable to the government, drawing all inferences and credibility choices in favor of the jury's verdict." Id. (citing United States v. Adair, 951 F.2d 316, 318 (11th Cir. 1992)).

The Hobbs Act provides in relevant part, "[w]hoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both." 18 U.S.C. § 1951(a). "Commerce" is defined as including "all commerce between any point in a State . . . and any point outside thereof." 18 U.S.C. § 1951(b)(3). The Supreme Court has stated that in a prosecution under the Hobbs Act, "[t]he charge that interstate commerce is affected is critical since the Federal Government's jurisdiction of this crime rests only on that interference." Stirone v. United States, 361 U.S. 212, 218 (1960).

This circuit's precedent makes clear that the type of evidence required for the Government to satisfy its burden of proof concerning the interstate commerce nexus differs depending on whether the defendant is charged with the inchoate offenses of conspiracy and attempt or a substantive offense under the Hobbs Act. In the case of a substantive Hobbs Act offense, the "impact on commerce does not need to be substantial; all that is required is minimal impact.'" United States v. Kaplan, 171 F.3d 1351, 1354 (11th Cir.) (quoting United States v. Castleberry, 116 F.3d 1384, 1388 (11th Cir. 1997)) (en banc), cert. denied, 528 U.S. 928 (1999). See also United States v. Diaz, 248 F.3d 1065, 1084 (11th Cir. 2001). Where a defendant is charged with attempt or conspiracy to violate the Hobbs Act, "the interstate nexus may be demonstrated by evidence of potential impact on interstate commerce or by evidence of actual, de minimis impact.'" Kaplan, 171 F.3d at 1354 (quoting United States v. Farrell, 877 F.2d 870, 875 (11th Cir. 1989)) (emphasis added); Diaz, 248 F.3d at 1084 (quoting Farrell, 877 F.2d at 875).²

This Court previously has stated that "[p]otential impact is measured at the time of the attempt, i.e., when the extortion demand is made, based on the assumed success of the intended scheme. A sufficient potential impact exists when there is evidence of 'a plan to embark upon a course of extortionate behavior likely to have the natural effect of obstructing commerce.'" Farrell, 870 F.2d at 875 (quoting United States v. Gupton, 495 F.2d 550, 551 (5th Cir. 1974)) (internal citations omitted).³ In light of this precedent, we can affirm Le's convictions only if we find that his actions had either a potential effect or an actual, de minimis effect on interstate commerce. On several occasions this Court has considered whether a defendant's actions had the potential to impact interstate commerce in order to satisfy the jurisdictional requirements of the Hobbs Act. In Kaplan, the defendant, who resided in Florida, had given power of attorney over two Panamanian bank accounts to another individual, who resided in Panama, in order to disguise his ownership of them. See Kaplan, 171 F.3d at 1352. That individual, however, took money from the accounts and threatened to report the defendant to the Internal Revenue Service if he pursued the matter. See id. at 1352-53. The defendant then enlisted someone with connections to the Panamanian Defense Force to coerce the individual in Panama holding power of attorney to transfer the funds to the defendant in Florida. See id. at 1353. The plan, however, was never carried out, and the funds were never transferred. See id. The defendant was later convicted by a jury of conspiracy to extort and attempted extortion in violation of the Hobbs Act. See id.

This Court upheld the defendant's two Hobbs Act convictions. We first observed that "[t]he Hobbs Act, by its own terms, encompasses the inchoate offenses of attempt to extort and conspiracy to extort." Id. at 1354. In such cases, we noted that "the government need only show a realistic probability of an effect, or some actual de minimis effect, on commerce to bring the extortion within the reach of the Hobbs Act." Id. Applying this standard, we stated that the Government had "brought forth evidence that, if [the defendant's] scheme had succeeded, commerce would have been affected." Id. at 1355. Specifically, evidence at trial indicated that "[t]he conspiracy required at least one transaction between Florida and Panama - the payment of the extortion demand to [the defendant] - for the conspiracy to be of benefit to the coconspirators." Id. (footnotes omitted) (emphasis in original). Because the defendant sought these specific funds and planned to pay the co-conspirators from them, we stated...