UNITED STATES of America, Plaintiff-Appellee, v. Scyrus Dion HEBERT, Defendant-Appellant.
No. 96-41240.
United States Court of Appeals, Fifth Circuit.
Dec. 15, 1997.
131 F.3d 514
G. Patrick Black, Frank Warren Henderson, Amy R. Blalock, Tyler, TX, for Defendant-Appellant.
Before DeMOSS and DENNIS, Circuit Judges, and ROSENTHAL*, District Judge.
PER CURIAM:
Defendant-appellant Scyrus Dion Hebert was convicted in the Eastern District of Texas on four counts of bank robbery, eleven counts of use of a firearm during the course of a violent crime, and seven counts of interference with commerce by committing robbery, in violation of the
Hebert appeals his convictions on the following grounds: (1) the
We affirm the district court on all of Hebert‘s points of appeal, for the reasons stated below.
I. Factual Background
A. The Bank of America Robbery
On March 21, 1996, a branch of the Bank of America in Port Arthur, Texas, was robbed at approximately 1:55 p.m. At trial, witnesses described the robber as a black male, with a short beard, wearing dark clothing and gloves. The robber had what appeared to be a black nylon stocking and a red bandanna over his head. The robber was armed with a chrome-plated handgun. The witnesses testified that the robber burst into the bank, jumped on and over a teller counter, and took cash from several teller drawers. The robber then ran out the front door.
Another witness, Jim Shoffner, testified at trial that during the afternoon of March 21, 1996, he was in his delivery truck parked a block from the bank. At about 2:00 p.m., Shoffner saw a man running toward him from the direction of the bank. Shoffner noticed that the man was carrying something that appeared to be spraying red paint. Shoffner testified that he remembered that banks often use dye-emitting devices to mark stolen items. Shoffner heard a car travelling in his direction at a high rate of speed. Shoffner noted the rear license plate number of the car, which he later told police was FRK 93M. Shoffner also noticed that the car was blue, had a vinyl top, had no front license plate, and that the trunk was held shut with what appeared to be a black cord. Shoffner thought that the car was probably a Buick, perhaps a Buick Regal.
Shoffner testified that he noticed cash lying in the street near where the blue car had been parked. He got out of his truck to pick up the cash and noticed something that looked like a “battery pack” that might emit dye. Shoffner left the “battery pack” in the street and brought the cash to the bank. At the bank, Shoffner telephoned the Port Arthur police. Gene Christian, a Port Arthur police officer, went to the place where Shoffner picked up the money and found an exploded dye-pack and a piece of a twenty-dollar bill.
Patsy Byers testified аt trial that she heard reports of the robbery and a description of the “getaway” car on her police scanner radio. As Byers drove by Alford‘s Supermarket, located about seven or eight miles from the bank, she noticed a car parked at a nearby gas station that matched the description of the car given on the radio. Byers stopped at Alford‘s and called the police. Byers testified that she saw a man, whom she identified at trial as Hebert, leave the gas station, get into the car, and drive to Alford‘s Supermarket. Byers again called the police, using a telephone at the gas station. From the gas station, Byers watched Hebert open his trunk, “dig[] around in” it, and enter the market.
Police officer Al Gillen testified that after he heard a radio report that the “getaway” car had been sighted at Alford‘s, he drove to the supermarket. Gillen saw a car matching the description of the getaway car parked in the parking lot. No one was in the car. Gillen looked into the car through an open window and saw a “reddish tint” on the inside of the driver‘s-side door.
Officer Mark Holmes also drove to Alford‘s after hearing the dispatcher‘s report of the robbery and the witnesses’ description of the robber and the car.2 Holmes testified that at
The police officers took Jim Shoffner to the Alford‘s parking lot, where Shoffner identified the Buick as the vehicle he had seen driving toward him earlier that day. The police officers towed the Buick to the station, obtained a search warrant, and searched the car. Holmes testified that in the search, he saw and/or recovered a nylon woman‘s stocking; a sweatshirt and socks with a red dye-like substance on them; and an inflated tire.
At trial, the government presented evidence that the red substance found on Hebert, his clothes, and his car was the dye emitted during the Bank of America robbery.3
B. The Other Robberies
A series of bank, restaurant, and liquor store robberies had taken place in the Beaumont, Texas area between November 1995 and March 1996. The businesses robbed were a Tеxas Commerce Bank branch, a Hardee‘s restaurant, a Piccadilly Cafeteria, A.J.‘s Discount Liquor Store, a Lucky Liquor, Inc. Store, Debb‘s Liquor Store, a Mr. Gatti‘s restaurant, and two robberies each of the Southeast Affiliated Federal Employees Credit Union and a Popeye‘s Chicken restaurant. Witnesses to most of these robberies described the robber as wearing a red bandanna. The Port Arthur Bank of America robber also wore a red bandanna.
At trial, the manager of the Hardee‘s restaurant robbed on November 9, 1995 testified that the robber was a black male carrying a chrome-plated gun, wearing a red bandanna. The manager positively identified Hebert as the robber at trial.
An employee of the Popeye‘s restaurant robbed on November 8 and 12, 1995, described the robber as a black male carrying a chrome semi-automatic handgun, wearing a red bandanna. The assistant manager testified that she saw the robber during the second robbery. She also described the robber as a black male, wearing a red bandanna, carrying a silver gun.
An employee with the Piccadilly‘s Cafeteria that was robbed on November 9, 1995 testified that the robber was a black male wearing a red bandanna. The employee tes-
The Southeast Affiliated Federal Employees Credit Union was robbed twice, on November 14, 1995, and January 2, 1996. A teller testified that the first robbery was committed by a black male carrying a small silver-chromed gun, and that the second robbery was committed by the same person carrying a similar gun and wearing a red bandanna and black and white tennis shoes. The teller also observed from a videotape and photographs of the robbery that the robber held the gun turned to the side. Another witness present at the first credit union robbery testified that the robber was a black male, carrying a small, silver, shiny pistol, and wearing a nylon stocking over his head and a red scarf or bandanna. The president of the credit union testified that Hebert had been a custоmer of the credit union from March 9, 1992 to July 16, 1993.
A teller at the Texas Commerce Bank that was robbed on November 29, 1995 testified that the robber was a black male carrying a chrome semi-automatic pistol. Another teller testified that the robber was a black male, carrying a silver gun, and wearing a red bandanna. The manager of a business located next to the Texas Commerce Bank saw a black male wearing black and white shoes, holding a chrome-plated handgun turned sideways, running away after the robbery.
An identification technician specialist with the Port Arthur Police Department also testified that a shoe print from the Bank of America teller counter that the robber jumped on was similar to the print of the bottom of the shoes Hebert was wearing when he was arrested. An examiner from the FBI lab compared footprints taken from the Bank of America teller counter and the teller counter of the Texas Commerce Bank that was robbed, with Hebert‘s shoes. The examiner concluded that the shoes cоrresponded in design and physical size to the latent prints.
The manager of A.J.‘s Liquor Store, robbed on February 16, 1996, testified that the robber was a male carrying a chrome-plated, automatic gun, wearing a bandanna. Earlier that day, Hebert‘s payroll check was cashed at A.J.‘s. Hebert‘s other payroll checks were cashed at other locations.
The owner of Debb‘s Liquor Store, which was robbed on March 5, 1996, testified that the robber was a black male, carrying a silver semi-automatic pistol, wearing a stocking and a red bandanna.
An employee of the Mr. Gatti‘s restaurant robbed on March 20, 1996 testified that the robber was a black male carrying a silver pistol, wearing a black nylon stocking over his face and black and white athletic shoes. The employee identified the shoes as the same shoes that Hebert wore when he was arrested. The assistant manager of Mr. Gatti‘s identified clothing found in Hebert‘s car, and Hebert‘s shoes, as similar to the clothing and shoes that the robber wore during the Mr. Gatti‘s robbery. She also tеstified that he used a silver handgun.
The superintendent at the Industrial Metal Company in Beaumont testified that Hebert worked for Industrial Metal as a structural steel fitter until he was laid off on March 20, 1996, the day of the Mr. Gatti‘s robbery and the day before the Texas Commerce Bank robbery. The superintendent testified that Hebert often wore a red bandanna at work.
An individual named Kevin Stewart testified that he bought a chrome .38 caliber semi-automatic pistol for Hebert‘s wife in August 1995. Stewart last saw the gun in the possession of Hebert‘s wife in September 1995.
An FBI agent who reviewed the bank accounts of Hebert‘s wife (Hebert did not have any bank accounts) testified that deposits were made to those accounts that were inconsistent with the income of Hebert and his wife. Several “suspicious” deposits were made near the time of some of the robberies. One day before the A.J.‘s Liquor Store robbery, Hebert‘s wife had $2,374.21 in her checking and savings accounts; four days later, Hebert and his wife bought a used car with $6,000 cash. The agent was unable to locate any source of income for Hebert or his wife that would explain this and other large cash purchases.
C. The Evidence of the Effect of the “Hobbs Act” Robberies on Interstate Commerce
The government presented evidence that each of the stores and restaurants robbed had lost money that would have been used to buy supplies and goods from out of state. The Hardee‘s manager testified that the restaurant bought many of its supplies from Ardmore, Oklahoma, and that the $117 taken in the robbery would have been used to buy supplies and pay employees. The Popeye‘s manager testified that the restaurant bought its chicken from Arkansas and other supplies from Louisiana. She testified that the $500 taken in the two Popeye‘s robberies would have been used to purchase chicken and supplies from out of state. The cashier of the Piccadilly Cafeteria testified that fifty to sixty percent of the cafeteria‘s food items came from out of state. The cashier testified that $600 was taken in the robbery. The Piccadilly chain, consisting of 130 restaurants located in the south and southeast United States, is headquartered in Louisiana. The manager of A.J.‘s Liquor Store testified that seventy to eighty percent of the liquor it sells comes from out of state; its customers include people travelling out of Texas. He testified that some of the $12,000 taken in the A.J.‘s robbery would have been used to buy food and inventory from out of state.
None of these witnesses testified that the robberies caused them to forego, reduce, or delay specific purchases from out of state.
II. Procedural Background
On April 18, 1996, a grand jury in the Eastern District of Texas returned a two-count indictment against Hebert for bank robbery,4 and use of a firearm during the course of a violent crime,5 based on the Bank of America robbery.
On May 16, 1996, the grand jury returned a superseding twenty-four count indictment, adding three counts of bank robbery, eleven counts of use of a firearm during the course of a violent crime, and eight counts of interference with commerce by committing robbery in violation of the
The jury convicted Hebert of twenty-two of the twenty-four counts in the superseding indictment. The jury found Hebert not guilty of the count alleging use of a firearm and the
This timely appeal followed.
III. Discussion
A. The Challenge to the Hobbs Act
Hebert argues that the district court erred in denying his motion to dismiss the indictment based on the facial unconstitutionality of the
During this appeal, this court rejected the same argument. In United States v. Robinson, 119 F.3d 1205 (5th Cir.1997), this court held:
[U]nder the third category of the commerce power described in Lopez, the particular conduct at issue in any given case need not have a substantial effect upon interstate commerce... so long as the regulated activity, in the aggregate, could reasonably be thought to substantially affect interstate commerce... [T]he cumulative result of many Hobbs Act violations is a substantial effect upon interstate commerce.
Id. at 1215. Since Robinson, this court reached the same result in United States v. Miles, 122 F.3d 235, 241 (5th Cir.1997). These precedents preclude Hebert‘s challenge.
B. The Challenge to the Jury Instructions
Hebert argues that the district erred in: (1) refusing his instruction that a violation of the
A district court‘s refusal to submit a proposed jury instruction is reviewed for abuse of discretion. United States v. Greig, 967 F.2d 1018, 1027 (5th Cir.1992). “A trial court‘s refusal to give a requested instruction constitutes reversible error when (1) the requested instruction is substantially correct, (2) the actual charge given to the jury did not substantially cover the content of the proposed instruction, and (3) the omission of the instruction would seriously impair a defendant‘s ability to present a given defense.” United States v. Daniel, 957 F.2d 162, 170 (5th Cir.1992). We review an included jury instruction objected to as inaccurate for abuse of discretion and will reverse only if the instruction fails correctly to state the law. United States v. Gray, 96 F.3d 769, 775 (5th Cir.1996), cert. denied, _ U.S. _, 117 S.Ct. 1275, 137 L.Ed.2d 351 (1997).
Hebert‘s first argument is foreclosed by this court‘s decision in Robinson. Hebert‘s second argument is foreclosed by the charge itself.
The district court instructed the jury in relevant part as follows:
For you to find the defendant guilty of [a
Hobbs Act violation] ... you must be convinced that the government has proved each of the following beyond a reasonable doubt:...
That the robberies obstructed, delayed or affected commerce. The effect on commercе need only be minimal. Both direct and indirect effects on interstate commerce may violate
Section 1951 . The government must prove that the defendant knew that his conduct would obstruct, delay, or affect commerce. In this case, the government argues that the entities cited in [theHobbs Act counts] actively engaged in interstate commerce, and their assets were depleted by defendant‘s acts of robbery, thereby curtailing their potential as purchasers of goods in the stream of interstate commerce. If you find that the government had proved this beyond a reasonable doubt, then the necessary effect on interstate commerce has been shown.
The district court did not instruct the jury that a “potential” effect on interstate commerce was sufficient to find a
Hebert‘s third argument is that the charge violated the holding of United States v. Gaudin, that “the Constitution gives a criminal defendant the right to demand that
Hebert‘s fourth argument, that the district court failed to instruct the jury that Hebert must have “knowingly” committed a robbery, is foreclosed by the charge itself. In the charge, the court instructed the jury that the third element of a
Under the plain error standard, this court “may only reverse appellant[‘s] convictions if (1) there was an error, (2) the error was clear and obvious, and (3) the error affected a defendant‘s substantial rights.” United States v. Jobe, 101 F.3d 1046, 1062 (5th Cir.1996). The instruction states that the defendant must have known that he was committing a robbery; no “clear and obvious” error occurred.
C. The Challenge to the Sufficiency of the Evidence to Sustain the Hobbs Act Convictions
“[A]n attack on the sufficiency of the evidence to sustain a criminal conviction is judged from the standpoint of whether, after viewing all evidence presented and all inferences that may reasonably be drawn from the evidence in the light most favorable to the prosecution, any reasonable jury could have found that the defendant was guilty beyond a reasonable doubt.” United States v. Harris, 104 F.3d 1465, 1470 (5th Cir.) (citations omitted), cert. denied, _ U.S. _, 118 S.Ct. 103, _ L.Ed.2d _ (1997); see also Jackson v. Virginia, 443 U.S. 307, 319-20, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).
Hebert‘s first insufficiency argument is based on the district court‘s instruction as to one of the elements of a
Courts have made it clear that
Hebert‘s second insufficiency argument is that the government presented insufficient evidence to prove beyond a reasonable doubt that Hebert‘s robberies of the restaurants and liquor stores had a substantial effect on interstate commerce. Hebеrt relies on the argument that the
In his brief, Hebert did not explicitly argue that the evidence at trial was insufficient to prove even a de minimis effect on interstate commerce. Recent Fifth Circuit cases have made it clear that evidence similar in both quality and quantity to that introduced against Hebert is sufficient to support
In Miles, the court upheld
The evidence as to the effect of Hebert‘s robberies of the restaurants and liquor stores is very similar. The government elicited testimony from managers or owners of each of the robbed establishments that each robbery depleted cash assets of the store or restau-
Hebert‘s third insufficiency argument is that the government presented insufficient evidence to prove beyond a reasonable doubt that Hebert committed the robberies of the banks or the stores, or that he used a firearm in relation to any of these robberies. The record clearly forecloses this argument. Viewing the considerable evidence in the record in the light most favorable to the government, we cannot say that no rational jury could have found Hebert guilty of any of the counts of conviction.
D. The Challenge Under the Fourth Amendment
Hebert argues that his warrantless arrest at Alford‘s supermarket was without probable cause. This court reviews de novo the “ultimate determination of Fourth Amendment reasonableness. ” United States v. Sinisterra, 77 F.3d 101, 104 (5th Cir.) (quoting United States v. Seals, 987 F.2d 1102, 1106 (5th Cir.1993)), cert. denied, _ U.S. _, 117 S.Ct. 82, 136 L.Ed.2d 39 (1996).
Probable cause for a warrantless arrest exists when the totality of facts and circumstances within an officer‘s knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the suspect had committed an offense. United States v. Wadley, 59 F.3d 510, 512 (5th Cir.1995), cert. denied, _ U.S. _, 117 S.Ct. 240, 136 L.Ed.2d 169 (1996). Hebert argues that the police had no probable cause to arrest him when he walked out of the grocery store. After holding a hearing on Hebert‘s motion to suppress, the district court found, in pertinent part, the following facts supporting probable cause to arrest Hebert:
First, [officer Holmes] knew that the robbery suspect had been exposed to red dye and that a red substance was on Hebert‘s hands. Second, he saw that Hebert, like the robbery suspect, was wearing black and white sneakers. Third, Hebert identified himself to them as the owner of the automobile matching general description of the robbery suspect‘s vehicle. Fourth, he had seen a red paint-like substance on portions of the car‘s interior. Fifth, Hebert had failed to respond forthrightly to some of his questions. Finally, the presence of an inflated tire behind the driver‘s seat of the car contradicted Hebert‘s claim the vehicle had a flat tire.
The testimony at trial supported these findings. The totality of facts and circumstances shоws that the officers reasonably believed that Hebert had committed an offense. This court finds no error.
E. The Challenge to the Sentence
The district court imposed the sentences for the second and subsequent convictions for use of a firearm in relation to a crime of violence under
Hebert admits that second or subsequent sentences under
The majority opinion in Deal does not help Hebert‘s argument. Deal held that the word “conviction” in
IV. Conclusion
The judgment of conviction and the sentence are affirmed.
DeMOSS, Circuit Judge, dissenting in part:
Hebert was sentenced to 2,581 months (215 years) in federal prison. Two-thirds of that term is attributable to Hebert‘s conviction under the seven counts of violation of the
I.
First of all, I have to register my fundamental disagreement with the strategy adopted by the Department of Justice and the federal prosecutors which has produced this conviction. Following passage of the
II.
The text of the
(a) Whoever 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 threаtens 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.
The government prosecuted this case and the trial judge charged the jury on the theory that the
Whoever unlawfully takes or obtains by force or violence or by intimidation any personal property or thing of value from the person or presence of another (the “victim“) when (i) such victim has at any time in the past bought anything of value from a seller in another state and (ii) such taking would deplete the assets of the victim so as to curtail in any way or degree the potential of such victim to make other purchases in the future from sellers in other states, shall be fined under this title or imprisoned not more than 20 years or both.
It is plainly obvious that the text of the
First, the Supreme Court has never held that the theory of “de minimis impact on interstate commerce” was sufficient to support the application of the
III.
In testing the correctness of the government‘s interpretation of the
1. The federal government does not have a general police power and, therefore, Congress cannot make a federal crime out of every robbery that occurs in the United States. See Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995).
2. The sections of the U.S.Code which do make robbery a federal offense have been codified in Chapter 103 of Title 18 and define robbery as a federal offense in certain limited circumstances specified in each of
3. The
4. The gravamen of the offense made criminal by the
5. Both the term “commerce” and the term “robbery” are defined in the
Whoever in any way or degree obstructs, delays or affects commerce [between any point in a state and any point outside thereof] or the movement of any article or commodity in commerce [between any point in a state and any point outside thereof] by [the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will or by means of actual or threatened force], shall be fined under this Title or imprisoned not more than 20 years or both. (Portions in brackets inserted.)
6. It is apparent, therefore, (i) that grammatically and logically the conduct defined as robbery in the
The government‘s interpretation of how the
The depletion of assets theory is fraught with fallacies and suppositions. According to the dictionary the word “deplete” means “to decrease seriously or exhaust the abundance or supply of” something. Webster‘s College Dictionary 363 (1991). While it is certainly possible that the cash in the cash register of a retail merchant might constitute all of the assets of that merchant, that circumstance is so unlikely as to not be a reasonable inference absent specific proof of that circumstance. The assets of any business entity will consist of raw materials, goods in process, finished goods, manufacturing machin- ery, office equipment, display equipment, inventories of merchandise, account receivable, trucks and other rolling stock, bank accounts, and real property and improvements thereon. Ordinarily, the value of all of these assets will greatly exceed the amount of cash which the business keeps in its cash register. Furthermore, it is customary for businesses to carry insurance to protect all of its assets from loss—by fire, by windstorm, by burglary, by theft, or by robbery; and such insurance eventually replaces the value of an asset (but for deductibles) to the value that asset had before there was any loss. Consequently, to determine whether the impact of a robbery on the assets of a business were sufficient to actually constitute a “depletion of those assets” there would have to be proof of what the assets were before the robbery and what the assets were after the robbery and proof as to what insurance coverage was aрplicable. No such proof was offered by the government in this case and consequently the jury and the trial court could only speculate as to whether or not the robberies “depleted the assets” of the victims.
Likewise, the conclusional testimony in this case that the money taken in the robbery “would have been used” to purchase food and other commodities from another state cannot withstand rational analysis. Most businesses that make a lot of cash sales routinely limit the amount of cash in the cash registers by periodically transferring quantities of cash into safes located on the premises. From these on-premises safes, which can be opened only by specially authorized employees, the cash is regularly picked up and transmitted to a local bank where it produces a credit to the account of the retail merchant making the deposit and the cash itself becomes the property of the bank. It is this credit in its checking account that the retail merchant later draws on by check which is sent in payment of the bill from the out-of-state seller that ultimately produces payment for any out-of-state purchases. There is only one circumstance when the cash in a cash register on the merchant‘s premises would be used to purchase goods from an out-of-state seller and that is when the retail merchant has ordered those goods to be delivered col-
In reality, therefore, the government‘s theories of “de minimis effect on interstate commerce” resulting from “depletion of assets” and “frustration of potential future sales” are nothing but semantical camouflage intended to obscure the fact that the robberies in this case did not “obstruct, delay or affect” interstate commerce. For these reasons and for the additional reasons set forth in my dissent in Miles, I would hold that the
I respectfully dissent.
HAROLD R. DEMOSS, JR.
UNITED STATES CIRCUIT JUDGE
Notes
Whoever 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.
Davis was convicted of four Hobbs Act counts and two companion use of firearm counts. The opinion does not disclose the amounts taken in each retail store involved but he was sentenced to a total of 457 months (38 years) on all counts. See Davis, 30 F.3d at 615.
Collins was convicted of two Hobbs Act counts and two companion use of firearm counts. The opinion does not disclose the amounts taken in each robbery but he was sentenced to a total of 550 months (46 years) on all counts. See Collins, 40 F.3d at 98. On appeal, his conviction on one robbery count and its companion firearm count was reversed requiring resentencing.
Gipson was convicted of a conspiracy count, three Hobbs Act counts and three companion firearm counts. The opinion does not disclose the amounts taken in each robbery but he was sentenced to a total of 750 months (62 years) on all counts. See Gipson, 46 F.3d at 473-74.
Laury was convicted on five Hobbs Act counts and five companion use оf firearm counts. The opinion does not disclose the amounts taken in each robbery but Laury was sentenced to a total of 1,071 months (89 years) on all counts. See Laury, 49 F.3d at 148.
Parker was convicted of six Hobbs Act counts and two use of firearm counts and was sentenced to 430 months (36 years). His total take in the six robberies was less than $500. See Parker, 104 F.3d at 73 (DeMoss, J., dissenting).
Miles was convicted of four Hobbs Act counts and four use of a firearm counts and was sentenced to 859 months (71 years). The total take in the four robberies was $7,000. See Miles, 122 F.3d at 236-39.
Gustus was convicted of the same counts as Miles plus an additional Hobbs Act count and a use of gun count and was sentenced to 1,140 months (95 years). See id. at 236-39.
Robinson was convicted of three Hobbs Act counts and one use of a firearm count and was sentenced to 270 months (23 years). The total take in the three robberies was approximately $70,000. See Robinson, 119 F.3d 1209-19.
Hebert was convicted of seven Hobbs Act counts and seven companion use of firearm counts. His sentence attributable to these counts was 1,621 months and out of his total sentence of 2,581 months. His total take in the seven robberies was approximately $17,600 with four of the robberies involving takes of less than $1,000.
United States v. Parker, 73 F.3d 48, 50 (5th Cir. 1996), aff‘d in part and rev‘d in part, 104 F.3d 72 (5th Cir.) (en banc), cert. denied, _ U.S. _, 117 S.Ct. 1720, 137 L.Ed.2d 842 (1997). The instruction approved in Miles read:If you believe beyond a reasonable doubt the government‘s evidence regarding the handling of cash proceeds from the Payless Shoe Store referred to in Count 1 of the indictment, that is, that monies obtained from the operations of such store werе routinely wired or electronically transferred from the State of Texas for deposit in a bank in another state, then you are instructed that the interstate commerce element ... has been satisfied.
Miles, 122 F.3d at 239. In the Parker and Miles instructions, as here, the district courts equated the loss of money that is routinely transferred out of state with an effect on interstate commerce.If you believe beyond a reasonable doubt the government‘s evidence regarding interstate commerce, to wit, that McDonald‘s, Colters, and Taco Bueno bought and sold merchandise that had traveled from another state to Texas, or that the robberies affected sales by the stores of such merchandise, or that the money proceeds from these stores moved in interstate commerce, or that these stores served customers who travel in interstate commerce, then you are instructed as a matter of law that there was an effect on interstate commerce.
the unlawful taking or obtaining of personal property from the рerson or in the presence of another, against his or her will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his or her person or property, or property in his or her custody or possession.
| Hebert | Miles | Zeigler |
|---|---|---|
| Hardee‘s $117 | McDonald‘s $1500 | Lucky Stop $800 |
| Popeye‘s (2) $500 total | McDonald‘s $3000 | Vickers gas $650 |
| Picadilly‘s $600 | Colter‘s $1300 | Apco Hudson $160 |
| A.J.‘s Liquor $12,000 | Taco Bueno $1200 | Mazzio‘s Pizza $300 |
| Debb‘s Liquor $3500 | Keith‘s Food $350-$500 | |
| Mr. Gatti‘s $900 | Rex‘s Chicken $1500 |
Whoever, during and in relation to any crime of violence ... uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence ... be sentenced to imprisonment for five years.... In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for twenty years.... [N]or shall the term of imprisonment imposed under this subsection run concurrently with any other term of imprisonment.