U.S. v. Zeigler

• Decision Date: 07 March 1994
• Docket Number: 92-5135,Nos. 92-5115,s. 92-5115
• Citation: 19 F.3d 486
• Parties: UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Chester Vernon ZEIGLER, Defendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 486

19 F.3d 486

UNITED STATES of America, Plaintiff-Appellee/Cross-Appellant, v. Chester Vernon ZEIGLER, Defendant-Appellant/Cross-Appellee.

Nos. 92-5115, 92-5135.

United States Court of Appeals, Tenth Circuit.

March 7, 1994.

Robert Nigh, Jr., Asst. Federal Public Defender, Tulsa, OK, for defendant-appellant/cross-appellee.

Allen J. Litchfield, Asst. U.S. Atty. (Tony M. Graham, U.S. Atty., with him on the brief), Tulsa, OK, for plaintiff-appellee/cross-appellant.

Before SEYMOUR, Chief Judge, and McWILLIAMS, and EBEL, Circuit Judges.

SEYMOUR, Chief Judge.

Defendant Charles Zeigler appeals the District Court's order denying his motion for judgment of acquittal. Mr. Zeigler was convicted by a jury of eight separate counts, the first six of which are at issue in this appeal. Each of the six counts charged Mr. Zeigler with carrying a firearm during a robbery affecting interstate commerce, in violation of the Hobbs Act, 18 U.S.C. Secs. 1951, 924(c)(1). Mr. Zeigler contends that the evidence presented at trial was insufficient to establish the effect on interstate commerce necessary to confer federal jurisdiction under the Act. On cross appeal, the government argues that Mr. Zeigler's sentence is illegal because the district court did not impose an enhancement

for Mr. Zeigler's second and subsequent convictions as required by section 924(c). For the reasons stated below, we AFFIRM the convictions but REMAND for resentencing.

I. BACKGROUND

The charges against Mr. Zeigler arose from a crime spree that resulted in the armed robbery of six separate businesses in Tulsa, Oklahoma. The robberies discussed below correspond to counts one through six respectively. We view the evidence, together with all reasonable inferences to be drawn therefrom, in the light most favorable to the government. United States v. Grimes, 967 F.2d 1468, 1472 (10th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 355, 121 L.Ed.2d 269 (1992); United States v. Haskins, 737 F.2d 844, 846 (10th Cir.1984).

The robbery spree began on August 29, 1991, when Mr. Zeigler robbed the Lucky Stop convenience store of $800 cash. Lucky Stop sells a variety of goods, many of which it buys from Affiliated Food Stores, Inc., a Tulsa-based food supplier. Affiliated Foods purchases many of its products from sources outside Oklahoma. Thus, Lucky Stop indirectly receives goods that originate outside the state. For example, Lucky Stop sells cigarettes and candy bars that it buys from Affiliated Foods. Affiliated Foods purchases the cigarettes from North Carolina and the candy products from New Jersey and Pennsylvania. Affiliated Foods also supplies Lucky Stop with canned goods and paper products that are manufactured outside Oklahoma.

On September 1, Mr. Zeigler robbed a Vickers gas station and escaped with about $650 taken from the cash register and floor safe. In addition to selling gas, Vickers sells tobacco products, candy, drugs, chips, and general food products. Most, if not all, of the products Vickers sells are purchased directly from the Harrison Company located in Shreveport, Louisiana. The money Mr. Zeigler took from Vickers would have been used to purchase other products to sell in the store, and it is undisputed that the robbery affected the business.

The third robbery occurred on September 12, when Mr. Zeigler robbed the Apco Hudson Oil station of $160. This service station sells gasoline as well as cigarettes, beer, candy, chips, magazines, and various beverages. Over fifty percent of the products that Apco Hudson Oil sells are manufactured or produced outside Oklahoma. The money taken by Mr. Zeigler would have been used to replenish goods sold in the store and to continue the business.

Mr. Zeigler continued his crime spree on September 13 by robbing Mazzio's Pizza restaurant of approximately $300. Ninety-five percent of the products Mazzio's uses to make its food comes from outside the state. It is uncontroverted that the robbery affected Mazzio's business and that the money Mr. Zeigler took would have been used in part to purchase more products.

One day later, Mr. Zeigler robbed Keith's Food Store of between $350 and $500. Keith's Food Store spends between $3000 and $4000 a month to purchase grocery products, and approximately ninety-five percent of the products sold in the store comes from outside Oklahoma. For example, the store purchases various products from Nabisco in New Jersey, from Nestle in Maryland, and from Texas and North Carolina. The owner of Keith's Food Store testified that the robbery affected his business and that the money taken by Mr. Zeigler would have been used in part to pay for more goods. On cross-examination, the store owner testified that he was not certain whether the store spent more or less than average on out-of-state goods for the month of the robbery or for the months prior to and following the robbery.

Mr. Zeigler's sixth and final robbery occurred on September 16 when he entered Rex's Fried Chicken Restaurant carrying a gun, ordered all the employees to sit on the floor behind the counter, and absconded with over $1500 from two separate cash registers. All the chicken sold by the Rex's chain, including the restaurant Mr. Zeigler robbed, is purchased from Bingham Foods located in Springfield, Missouri. Rex's also purchases breading formula, onion rings, and honey

from sources outside Oklahoma. The owner of Rex's restaurants stated that the $1500 Mr. Zeigler took would have been used to buy more chicken, to pay bills, employees, rent, utilities, and taxes, and that the robbery had a direct impact on the bottom line of the business. On cross-examination, Rex's owner testified that she purchased "about the same" amount of out-of-state goods in the month following the robbery as she did in September, the month of the robbery. She also testified that she was probably not late paying her September bill for out-of-state goods for the robbed restaurant because she is able to draw money from other restaurants if needed to pay bills.

II. FEDERAL JURISDICTION UNDER THE HOBBS ACT

Having been convicted on all six counts, Mr. Zeigler now challenges the sufficiency of the evidence to support federal jurisdiction over any of these counts under the Hobbs Act. He contends the government failed to prove the robberies had any effect on interstate commerce.

The Hobbs Act provides for the punishment of anyone who "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." 18 U.S.C. Sec. 1951(a) (1988) (emphasis added). The statute broadly defines the term "commerce" to encompass "all commerce between any point in a State, ... and any point outside thereof; ... and all other commerce over which the United States has jurisdiction." Id. Sec. 1951(b)(3).

Hobbs Act jurisdiction is based on Congress' broad authority to regulate interstate commerce. As the Supreme Court noted in Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), the Hobbs Act "speaks in broad language, manifesting a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence. The Act outlaws such interference 'in any way or degree.' " Id. at 215, 80 S.Ct. at 272 (citing 18 U.S.C. Sec. 1951(a)); see also United States v. Culbert, 435 U.S. 371, 373, 98 S.Ct. 1112, 1113, 55 L.Ed.2d 349 (1978) (rejecting any limitation of the Hobbs Act to "racketeering" only and concluding that words used by Congress in the Act "do not lend themselves to restrictive interpretation."). ¹

A. Effect-On-Commerce Requirement

In accordance with the plain language of the statute, this court has held that the jurisdictional predicate of the Hobbs Act can be satisfied by a showing of "any de minimis effect on commerce." United States v. Boston, 718 F.2d 1511, 1516 (10th Cir.1983), cert. denied, 466 U.S. 974, 104 S.Ct. 2352, 80 L.Ed.2d 825 (1984); see United States v. Lotspeich, 796 F.2d 1268, 1270 (10th Cir.1986) ("The Hobbs Act requires no more than a showing of a limited effect on interstate commerce."); United States v. Norris, 792 F.2d 956, 958 (10th Cir.1986) ("A de minimis effect on commerce has been held to be enough to violate Sec. 1951."); see also United States v. Brown, 959 F.2d 63, 67 (6th Cir.1992) (citing cases from numerous other circuits accepting de minimis rule). The minimal effect on commerce may be established by evidence of a "mere 'depletion of assets' of a firm engaged in interstate commerce." Norris, 792 F.2d at 958; see Boston, 718 F.2d at 1516. Under the "depletion of assets" theory commerce is affected when an enterprise, which either is actively engaged in interstate commerce or customarily purchases items in interstate commerce, has its assets depleted ..., thereby curtailing the victim's potential as a purchaser of such goods.

United States v. Elders, 569 F.2d 1020, 1025 (7th Cir.1978).

In United States v. Whitt, 718 F.2d 1494, 1500 (10th Cir.1983), a case involving kickbacks paid to Oklahoma county officials by various vendors, this court approved jury instructions on the depletion of assets theory. ² See also Boston, 718 F.2d at 1516-17. The defendant-county commissioner argued that in one of the three extortion counts there was no evidence the vendor was involved in interstate commerce. We acknowledged defendant's claim, but nevertheless upheld the conviction on this count because evidence showed the county's assets were depleted as a result of the kickback scheme. Whitt, 718 F.2d at 1500. Given the reduction in the county's assets and the county's regular practice of purchasing goods in interstate commerce, the evidence was sufficient "for the jury to make the required finding to support the conviction on this count." Id. Significantly, there was no evidence that the county actually purchased fewer goods as a result of...