U.S. v. Nutall
| Decision Date | 25 June 1999 |
| Docket Number | No. 97-51050,97-51050 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Gary Patrick NUTALL and Raymond Andre Nutall, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Joseph H. Gay, Jr., U.S. Atty., Margaret Feuille Leachman, San Antonio, TX, for Plaintiff-Appellee.
M. Carolyn Fuentes, Henry Joseph Bemporad, San Antonio, TX, for Gary Nutall.
Tricia Pope, McGinnis, Lochridge & Kilgore, Austin, TX, for Raymond Nutall.
Appeals from the United States District Court for the Western District of Texas.
Before EMILIO M. GARZA, DeMOSS and PARKER, Circuit Judges.
Brothers Raymond Andre Nutall and Gary Patrick Nutall were convicted of conspiracy to interfere with commerce by robbery, interfering with commerce by robbery, and using and carrying a weapon during a crime of violence. Gary Patrick Nutall appeals, contending that the district court, in denying his motion to sever the trial, violated his right to a fair trial and his right to confrontation. Raymond Andre Nutall also appeals, contending that the Government failed to produce sufficient evidence of an effect on interstate commerce. We AFFIRM.
On December 29, 1995, a robbery occurred at the Ace America Cash Express store on Fredericksburg Road in San Antonio, Texas just after closing. One man, armed with a gun, demanded money from the Ace America manager Charles Milburn. The man ordered Milburn to enter the store and open the safe. Milburn opened the door to the store and disarmed the alarm. As the men entered the store, the robber placed a mask over his face. After receiving money, the man ordered Milburn to sit down, tied Milburn's hands together, and took Milburn's wallet.
On February 2, 1996, a man attempted to commit a robbery at the Ace America store on Cross Creek Road in San Antonio. A man with a gun approached Lenny Alcorta as she exited the store. The man pointed a gun at Alcorta's head and ordered her to re-enter the store and disarm the alarm. Upon disarming the alarm, Alcorta was ordered to open the safe. She attempted to open the safe but was unsuccessful. The man stole Alcorta's purse, including her identification and approximately $500 in cash.
Following the robbery and the attempted robbery at the Ace America stores, San Antonio police detective William Biesenbach conducted surveillance of two men in March and early April, 1996. Biesenbach later identified these men as Gary Nutall and Raymond Nutall. Detective Biesenbach followed the two men as they stopped at, and drove by approximately 10 offices of four different check cashing businesses in San Antonio, Texas. Detective Biesenbach estimated that the two men drove by the businesses approximately 25 times.
Biesenbach identified two vehicles that the men used in driving by the businesses: a black Nissan 200SX and a white Nissan Altima. Raymond Nutall owned the 200SX and Gary Nutall owned the Altima. During the drive-bys, Gary Nutall drove the vehicle while Raymond Nutall sat in the passenger seat. On a number of occasions, Biesenbach observed Gary Nutall cover the license plate on his Altima with the license plate from another vehicle or switch plates before driving by businesses. Biesenbach also observed Raymond Nutall place a gym bag in Gary Nutall's car on two occasions.
On April 1, 1996, Biesenbach stopped the Altima and arrested Gary and Raymond Nutall. Biesenbach testified that he located a gym bag in the back seat of the car that contained a revolver, a ski mask, a rubber mask, gloves, pillow cases, a knife, binoculars, and duct tape. Biesenbach further testified that when he stopped the Appellants, the license plate on the Altima belonged to another vehicle and that the Altima's plates were in the trunk. An officer assisting in the arrest testified that he found gloves in Gary Nutall's front pants pocket. In written statements, both Appellants confessed to "casing" the various check cashing businesses.
At trial, the Government presented evidence of Gary Nutall and Raymond Nutall's involvement in the December, 1995 robbery at the Fredericksburg Road Ace America store. Milburn identified various items that belonged to the Appellants that were similar to items used by the robber, including a mask and a flowered pillow case. Milburn also identified a purple strap found at Raymond Nutall's apartment. These straps are used by Ace America to bind money. Milburn also said that the Government's exhibit, a semi-automatic pistol belonging to Robert Taylor, was similar to the firearm used by the robber. In written statements, both Appellants confessed to participating in the Fredericksburg Road Ace America robbery.
The Government also produced evidence of Gary Nutall and Raymond Nutall's involvement in the February, 1996 attempted robbery at the Cross Creek Ace America store. At trial, Alcorta identified a black jacket found in Raymond Nutall's car as the jacket that the robber wore. She also testified that a ski mask found in a gym bag in Gary Nutall's car was the same color as the one worn by the robber. The Government introduced evidence located by the San Antonio police at Raymond Nutall's apartment, including Alcorta's driver's license, manager's card, address book, and other personal belongings. In written statements, both Appellants confessed to the February, 1996 attempted robbery of the Cross Creek Ace America store.
The Government also offered evidence that the Appellants exhibited a sudden increase in available cash following the December, 1995 robbery. On December 30, 1995, Gary Nutall paid $5,460 toward the purchase of a white Nissan Altima. In January, 1996, he returned to the Nissan dealership to install a CD player, an alarm, and tinting and while there, he showed one of the salespeople clothes in the trunk that he recently had purchased. In February, 1996, Raymond Nutall purchased a Nissan 200SX, and also made cash purchases of clothing and jewelry.
Appellants were charged in a five count indictment with conspiracy to interfere with commerce by robbery, 18 U.S.C. § 1951, two counts of interference with commerce by robbery, 18 U.S.C. §§ 2, 1951 (Counts Two and Four), and with two counts of using and carrying a firearm during and in relation to a crime of violence, 18 U.S.C. §§ 2, 924(c)(1) (Counts Three and Five).
Despite his confession and the evidence against him, Gary Nutall later denied robbing the Ace America store in December, attempting to rob the Ace America store in January, and casing check cashing businesses and making plans to rob them. With respect to the written confession, Gary Nutall explained that he could not read nor write very well, and when he signed the confession written by FBI Agent Henry, he did not know what the statement said. He also claims that he only admitted his role in the alleged crimes because Agent Henry continued to question and threaten him with an extensive prison sentence. In addition, Gary Nutall explained that his other brother, Paul Nutall, gave him the money to purchase the white Nissan and took him to a clothing store to purchase some new clothes. Finally, he presented two alibi witnesses, his brother-in-law and his nephew, who testified that Gary Nutall was at home with his family on the night the store was robbed.
A jury convicted Appellants on all counts.
Raymond Nutall raises two arguments on appeal: (1) the Government failed to show the requisite effect on interstate commerce; and (2) the district court erred when it gave jury instructions relating to the effect on interstate commerce. Gary Nutall raises three issues on appeal: (1) the district court abused its discretion in denying his motion to sever; (2) the district court committed Bruton error in admitting the confession of Raymond Nutall which included a clear reference to Gary Nutall; and (3) the trial court erred when it erroneously admitted irrelevant evidence. We AFFIRM.
Raymond Nutall claims that the evidence is insufficient to support a finding that his robbery obstructed interstate commerce, an essential element of federal criminal jurisdiction. This Court reviews such challenges to evidentiary sufficiency in the light most favorable to the verdict, inquiring only whether a rational juror could have found each element of the crime proven beyond a reasonable doubt. See United States v. Collins, 40 F.3d 95, 99 (5th Cir.1994) (citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).
Initially, we must address the amount of effect required on interstate commerce under the Hobbs Act. The evidence in this case satisfies the impact on commerce required for Hobbs Act jurisdiction under United States v. Robinson, 119 F.3d 1205 (5th Cir.1997). Ace America Cash Express is a nationwide company that cashes checks and sells money orders. Ace cashes checks from in-state and out-of-state banks. Before checks are cashed, Ace places phone calls to verify the legitimacy of the checks and whether there is sufficient funds to cover the checks. Ace sells money orders which are drawn from out-of-state banks and Ace sends and receives wire-transferred money to and from points outside of Texas and outside of the United States. In addition, Ace electronically files tax returns for its customers. Tax returns are transferred to Seattle, Washington. Ace stores typically maintain large amounts of cash at their stores.
The Government, relying on a depletion of assets theory, offered evidence that the Appellants received more than $27,000 from the Ace America robbery. The theft of this money prevented Ace America from conducting its business which operated in interstate commerce. It is clear that this Court has approved the depletion of assets theory as a method for showing an effect on interstate commerce. See United States v. Collins, 40 F.3d 95, 99-100 (5th Cir.1994)....
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