U. S. v. Smith

• Decision Date: 05 February 1999
• Docket Number: No. 97-2250,97-2250
• Parties: (6th Cir. 1999) United States of America, Plaintiff-Appellee, v. Quintus Smith, Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 452

182 F.3d 452 (6th Cir. 1999)

United States of America, Plaintiff-Appellee, v. Quintus Smith, Defendant-Appellant.

No. 97-2250

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: February 5, 1999

Decided and Filed: June 28, 1999

Appeal from the United States District Court for the Eastern District of Michigan at Detroit; No. 96-80847--Julian A. Cook, Jr., District Judge.

Diane L. Marion, OFFICE OF THE U.S. ATTORNEY, Detroit, Michigan, for Appellee.

Thomas V. Wilhelm, Bloomfield Hills, Michigan, for Appellant.

Before: JONES, NELSON, and BOGGS, Circuit Judges.

BOGGS, Circuit Judge.

Quintus Smith and several confederates robbed a number of grocery and party stores in Michigan at gunpoint. A jury convicted Smith on one count of robbery, in violation of 18 U.S.C. 1951 (the Hobbs Act); six counts of using or carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. 924(c); and one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. 922(g). He was acquitted on ten counts of robbery, two counts of attempted robbery, and seven counts of using or carrying a firearm during and in relation to a crime of violence.

On appeal, Smith argues that the Supreme Court's decision in United States v. Lopez, 514 U.S. 549 (1995), renders the Hobbs Act robbery charge unconstitutional, either facially or as applied to him. On Smith's view, Lopez requires the government to prove that each robbery substantially affected interstate commerce. Smith also argues that his acquittal on five of the robbery charges deprived the district court of jurisdiction to determine the 924(c) counts associated with those five robberies. Finally, Smith argues that the government presented insufficient evidence to convict him of the 922(g) charge. We affirm the judgment and sentence of the district court.

I

On July 12, 1996, the Ypsilanti Party Store was robbed by two masked men, one of whom carried a silver revolver. The men pointed the gun at the clerk and ordered him to open the cash register and lie on the floor, then took between $1,500 and $2,000 in cash plus lottery tickets. The store's primary sales are beer, wine, cigarettes, and lottery tickets. On August 23, 1996, Toma's Party Store was robbed by three masked men, all of whom were armed, one with a "machine gun." The robbers stuffed cash and lottery tickets into a red duffle bag, then left in a white car. Thirty percent of Toma's business is sales of beer, wine, and cigarettes. The next night, Norm's Market was robbed by three masked men, dressed in black and armed with a Spectre 9-mm assault pistol and what looked like an Uzi. The robbers took cash, money orders, and lottery tickets. Norm's primarily sells beer, wine, cigarettes, and some groceries. On September 21, 1996, three men wearing masks and carrying guns attempted to rob the S&H Party Store. The cash register would not open, customers entered the store, and the three men fled. S&H sells primarily beer, wine, and cigarettes. On September 27, 1996, the Super J Party Store was robbed by two masked men, one of whom displayed a long gun. The men jumped the counter and took cash and lottery tickets, then fled when the owner yelled from the back of the store. The clerk identified a red duffel bag later recovered from Smith's home as the bag used in the robbery. On October 3, 1996, two armed men dressed in black and wearing masks attempted to rob the Regal Market. The owner of the store struggled with one of the men, during which a part fell off of the robber's gun. The men fled and the owner gave the gun part to the police.

On October 5, 1996, Romulus, Michigan, police officers were conducting surveillance of the Super J Party Store. Officer Barnes observed a Buick Regal at the scene, which sped towards him. Barnes jumped out of the way and fired his shotgun at the car. Barnes got a close look at the driver of the car, whom he identified as Smith when he saw Smith's photograph later that night in the course of executing a search warrant at Smith's home. The Buick was observed parked at Smith's home later on the night of October 5, and suspects from the Super J Party Store robbery had barricaded themselves in the house. Police officers obtained a search warrant, entered the house, and recovered a blood-stained tee shirt, a red duffel bag, a glove, a leather hood, a black face mask, and two ski masks. Torn lottery tickets were found in the toilet. The officers arrested William Bates, Thaddeus Buckner, Torrey Smith, and Jermaine Walton. The next day, October 6, 1996, Barnes arrested Smith at a restaurant in Romulus. Smith admitted that he was at the Super J market on the evening of October 5, that he drove the Buick away from the store, and that he had been injured by police shotgun fire.

Eugene Thompson pleaded guilty to the robbery of Toma's Market. He testified that he drove his girlfriend's white Grand Am to the store with Smith and a young boy called "Male" in the back seat and Lawrence Beard in the front passenger seat. "Male" was identified by another associate as William Bates. The other three men got out of the car with a red duffel bag and went into the store. A customer ran out of the store, then Smith, Beard, and Bates ran out of the store and to the car, pulling off their face masks as they ran. As they got into the car, Smith berated Bates for letting the customer get away, saying that Bates should have shot him.

Thompson testified that he was present when Smith, Beard, and Bates robbed Norm's Market on August 24, 1996. According to Thompson, he and Jermaine Walton remained in Thompson's Bronco while the others, dressed in black, robbed the store. Thompson also testified that he rented his Davis Industries .380-caliber pistol to Beard on two occasions after August 24, 1996 and that he and friends found Smith bleeding at a gas station the night of October 5, 1996, and drove him to Shoney's restaurant in Romulus.

Thaddeus Buckner testified that he began robbing stores with Smith in February 1996, and continued until he was arrested on October 6, 1996. Buckner testified that he, Smith, and Bates went to the Ypsilanti Party Store in Smith's Buick Regal. Buckner had a .357 revolver supplied by Smith. Buckner and Bates entered the store, took cash and lottery tickets, put them in the red duffel bag later recovered from Smith's house, and returned to the car. Buckner also testified that he was present at the attempted robberies of the S&H Market and the Regal Market. He confirmed the testimony of the store personnel and stated that at the Regal Market, part of a sawed-off shotgun fell off when Bates struggled with the store owner.

Bates identified the red duffel bag recovered at Smith's house as the bag used in the robberies. He also testified that a .32 pistol, a .380 pistol, and a .357 handgun were kept in the red duffel bag, and handed out by Smith before each robbery.

Witnesses established that all the stores robbed by Smith and his associates dealt primarily, or at least significantly, in beer, wine, and cigarettes. Federal Bureau of Alcohol, Tobacco, and Firearms agents testified that tobacco and alcohol products, with few exceptions, are manufactured outside of Michigan and must be transported there for sale.

Smith was indicted on multiple counts of robbery, multiple counts of using or carrying a firearm during and in relation to a crime of violence, and one count of being a convicted felon in possession of a firearm. He was convicted by a jury on one count of robbery, six counts of using or carrying a firearm during and in relation to a crime of violence, and the felon-in-possession count. Smith filed a motion for arrest of judgment and judgment of acquittal as to the five 924(c) convictions associated with five robbery counts of which he was acquitted, arguing that the district court lost jurisdiction over the firearms counts when the jury acquitted him of the predicate robberies. At sentencing, the district court denied Smith's motion and sentenced him to approximately twenty-six years for the robbery and felon-in-possession convictions and 105 consecutive years for the 924(c) convictions. Smith appeals the judgment and sentence of the district court.

II

Smith charges three errors on appeal. First, he argues that he should have been acquitted of all Hobbs Act counts, because either (1) after the Supreme Court's decision in United States v. Lopez, 514 U.S. 549 (1995), the Hobbs Act is unconstitutional as applied to him or, in the alternative, (2) the government did not prove the required nexus between the robberies and interstate commerce. Second, Smith argues that his acquittal on five of the Hobbs Act counts deprived the district court of jurisdiction over the 924(c) counts based on those predicate crimes. Third, Smith argues that the government presented insufficient evidence to convict him of possession of a firearm by a felon.

We review constitutional challenges to criminal convictions de novo, as questions of law. United States v. Knipp, 963 F.2d 839, 842 (6th Cir. 1992) (citing Loudermill v. Cleveland Bd. of Educ., 844 F.2d 304, 308 (6th Cir. 1988)).

When a defendant challenges the sufficiency of the evidence to support a conviction, we inquire whether, viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt. United States v. Kincaide, 145 F.3d 771, 781 (6th Cir. 1998) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

A. The Lopez Challenge

Smith asserts that after Lopez, the government must prove that the robberies had a "substantial effect" on interstate commerce, instead of the "de minimis" effect previously required. Unfortunately for Smith, the question of whether Lopez changed the de minimis standard has been widely litigated. Although this Circuit has not published a decision...