USA vs. McFarland, 111502 FED5, 00-10569

Docket Nº:00-10569
Party Name:USA vs. McFarland
Case Date:November 15, 2002
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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USA vs. McFarland

00-10569

FED5

11/15/2002

REVISED NOVEMBER 15, 2002 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-10569

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

JAMES MCFARLAND, JR Defendant - Appellant

Appeal from the United States District Court for the Northern District of Texas

October 28, 2002 Before KING, Chief Judge, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS,BENAVIDES, STEWART, PARKER, DENNIS, and CLEMENT, Circuit Judges. PER CURIAM:

By reason of an equally divided en banc court, we affirm the district court’s judgment of conviction and sentence.

DAVIS and BENAVIDES, concurring in the affirmance of the

judgment:

It is a deep mystery to us why five judges thought it

helpful or appropriate to take eight fellow judges to task for

failing to explain why they decline to change the established law

of this circuit and create a circuit split. We of course

disclaim their attempt to attribute views to us.

GARWOOD, Circuit Judge, with whom JOLLY, HIGGINBOTHAM, JONES,

SMITH, BARKSDALE, DEMOSS and CLEMENT, Circuit Judges, join,

dissenting:

We respectfully dissent from the evenly divided Court’s per curiam, unexplained affirmance of these convictions. The nature of the case and our reasons for concluding that reversal is required are set forth below.

James McFarland, Jr. appeals his conviction of four counts of robbery of local convenience stores in Fort Worth, Texas, in violation of 18 U.S.C. § 1951 (the Hobbs Act) and four corresponding counts of using and carrying a firearm during and in relation to those robberies in violation of 18 U.S.C. § 924(c)(1). He challenges his conviction on the Hobbs Act counts, asserting that the evidence was insufficient to establish the constitutionally or statutorily required nexus to interstate commerce and that the jury charge respecting this element was defective. A panel of this court affirmed per curiam. United States v. McFarland, 264 F.3d 557 (5th Cir. 2001). The panel considered itself bound by our prior decision in United States v. Robinson, 119 F.3d 205 (5th Cir. 1997), and United States v.

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Hickman, 151 F.3d 446 (5th Cir. 1998), aff’d by an equally divided en banc court, 179 F.3d 230 (5th Cir. 1999), cert. denied, 120 S.Ct. 2195 (2000). Judge Demoss specially concurred, 264 F.3d at 559-61, urging en banc reconsideration in light of the intervening decisions in United States v. Morrison, 120 S.Ct. 1740 (2000), and Jones v. United States, 120 S.Ct. 1904 (2000), the equally divided nature of the Hickman en banc affirmance and Judge Higginbotham’s dissent therefrom. The Court subsequently took the case en banc. United States v. McFarland, 281 F.3d 506 (5th Cir. 2002).

Facts and Procedural Background

McFarland was charged in a ten count indictment with five Hobbs Act robbery counts, and five related section 924(c)(1) counts, pertaining to robberies of local convenience stores committed in Fort Worth, Texas, in November and December 1998.1 He was acquitted of one of the robbery counts and of its related section 924(c)(1) count.2 He was convicted on all the remaining counts. The four Hobbs Act counts of conviction (counts one, five, seven and nine) each alleged that McFarland “did knowingly and willfully obstruct, delay, and affect interstate commerce and did attempt to obstruct, delay and affect interstate commerce, by robbery, to wit: the defendant did take and obtain property, namely

1McFarland had been arrested for the robberies by Fort Worth police in late December 1998 and incarcerated in the Tarrant county, Texas, jail. He was later transferred into federalcustody when the state dismissed its robbery charges against him and the United States Attorney adopted the robbery offenses for federal prosecution.

2The counts of acquittal were count three (robbery on November 24, 1998 of Haynie’s Inc.) and count four (the related § 924(c)(1) count).

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United States Currency, from the person and in the presence of . . . [name of store employee], an employee of . . . [name and address of store], against his will by means of actual and threatened force, violence, and fear of injury to his person.”3

The stores involved, the amounts taken, in each case from the cash register, and the relevant dates of the four robberies were the following:

Count one, robbery November 20, 1998 of “Buy-Low” convenience store in which “about $100, close to $100" was taken;

Count five, robbery December 3, 1998 of Gateway Discount Liquor store in which “somewhere around 15 [$1,500] to $2,000" cash was taken;

Count seven, robbery December 11, 1998, Quickway Shopping

3Although, as indicated, these counts each reference “attempt,” the jury charge makes no reference whatever to“attempt,” and these counts were submitted to the jury entirelyon a completed offense basis. There was no conspiracy allegation or count, each Hobbs Act count was submitted to the jury as a separate and distinct offense, and the jury was charged “Aseparate crime is charged in each count of the indictment. Each count and the evidence pertaining to it should be consideredseparately.” The defendant acted alone in each of the robberies, although there is evidence indicating that in at least one ofthem he was driven from the site just after the robbery by hiswife or girlfriend. There is no suggestion that the defendant (or the wife or girlfriend) was other than a resident of Fort Worth, or that he had any intention or purpose to do oraccomplish anything other than simply what he did, namely take cash from each store robbed.

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convenience store in which “about $50" cash was taken;4

Count nine, robbery December 21, 1998, Jeff Stop convenience store, in which $145 cash was taken.

Each of these four stores was a retail store, three being retail convenience stores and one a retail liquor store. There is no evidence that any of the four stores made any sales or shipments to points or purchasers outside of Texas, or, indeed made any sales other than at the store premises to retail purchasers resident in Fort Worth. There is no evidence that any of the stores was located at (or near) any transportation facility, such as a bus or train station or airport, or on an interstate highway. Three of the stores–Buy-Low, Jeff Stop and Gateway Discount Liquor–were apparently stand-alone, single location, concerns, unaffiliated, by common ownership or otherwise, with any other concern. The Quickway Shopping convenience store was apparently one of an unstated number of such stores so named, and William Gumfory, owner of the store robbed, may have owned some (or all) of the other

4“About $50" is the testimony of Rosa Candanosa, the employee on duty at the store when the robbery took place who took the money from the cash register and handed it to thedefendant. The then store owner, William Gumfory, who at the time of trial in March 2000 had been retired for an unstated length of time, testified he was not at the store when therobbery occurred. When asked by the prosecution “can you tell us approximately how much your store was robbed the day RosaCandanosa was working” he replied “I really don’t recall, but Iwould say in the neighborhood of $100.” No further precision wassupplied nor is there any explanation of how or on what basis the “in the neighborhood of $100" was arrived at.

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Quickway Shopping convenience stores.5 There is no evidence that any of the four robbed stores (or any Quickway Shopping store) had any facilities, property, employees, bank accounts or activities outside of Fort Worth, or was owned, in whole or in part, by any one not a Fort Worth resident.

Each of the four retail stores sold items of merchandise some of which the evidence showed were originally manufactured or processed outside of Texas.6 As to none of the three convenience stores was there any evidence indicating what fraction or percentage of their sales was of or allocable to items which had been manufactured or processed out of Texas, or what was the total dollar amount either of such sales or of all sales at the particular store. As to the Gateway Discount Liquor store, one of the three Texas wholesalers who supplied it testified that ninety- five percent of what he distributed both generally and to that particular store “came from outside the state of Texas” and that a

5The evidence in this respect is sparse, consisting only of the following. William Gumfory replied “That is correct” to theprosecutor’s question “Was one of the convenience stores that you owned Quickway Convenience Store shopping on 245 Bailey FortWorth, Texas” [The store robbed on December 11, 1998]. And, a Weatherford, Texas, wholesaler testified that “we suppliedQuickway Convenience Stores as a group,” that he supplied theQuickway store at 245 Bailey Street, had long done business withMr. Gumfory, and answered “yes” to the prosecutor’s question did he “rely on Mr. Gumfory’s stores, at least in the December ‘98time frame, and stores like that, in conducting your business?”

6Such out-of-state items included the following. The Buy- Low store sold cigarettes, Coors beer and Gatorade. The Quickway Shopping store sold cigarettes, Tropicana Orange Juice, Coorsbeer, Gatorade, Nabisco snacks, Anacin and Purina dog food. The Jeff Stop sold cigarettes, Tropicana Orange Juice, Coors beer,Anacin, and Purina dog food. The Gateway Discount Liquor store sold various liquors produced outside of Texas.

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very small amount of liquor or wine products was produced in Texas. The only evidence as to the Gateway Discount Liquor Store’s dollar volume of sales and purchases was that it had $26,640.69 sales and $23,084.73 purchases from November 17 to November 30, 1998, and $34,910.03 sales and $36,547.67 purchases from December 1, 1998 through December 17, 1998, and that in the retail liquor business people start buying after Thanksgiving and the busiest time of year is from October through December.

There was...

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