A pair of men robbed an employee of Sánese Services, a vending machine company, as he was servicing vending machines at Calltech Communications in Columbus, Ohio. A jury convicted Dion Hopson, the defendant-appellant, of robbery and carrying and brandishing a weapon during a crime of violence in connection with this crime, and of making a false statement to a federally licensed firearms dealer. On appeal, Hopson raises a number of claims, most notably that his confession to the robbery was admitted in violation of Miranda v. Arizona,
BACKGROUND
On June 4, 2000, Dion Hopson purchased three firearms from the Peddler’s Post, a federally licensed firearms dealer located in Wilmington, Ohio. As part of the transaction, Hopson completed ATF Form 4473, the Firearms Transaction Record, as required by federal law. He answered “no” to the question, “are you under indictment or information in any court for a crime for which a judge could imprison you for more than one year?” At the time, Hopson was under indictment in Franklin County, Ohio, for the felony crime of carrying a concealed weapon.
On November 1, 2000, Hopson was hired as a vending route driver by Sánese Services (“Sánese”), a vending machine and catering business located in Columbus, Ohio. Vending route drivers service the vending machines on their routes and collect money generated by these machines. As part of his route, Hopson serviced the vending machines at Calltech Communications (“Calltech”), located in the northwest area of Columbus. On December 12, 2000, Sánese fired Hopson for attempting to steal approximately $1,000.
On March 27, 2001, three armed, masked men robbed Sánese. The men entered the Sánese budding and proceeded to the area where money from second-shift delivery trucks — Hopson’s former shift— was kept. The largest of the men instructed the security guard to come out of his cage and unlock the gate to the room where the money was stored. Most of the robbery was captured by a security camera.
On October 8, 2001, a second-shift delivery truck was robbed as the driver was servicing the vending machines at Call-tech. Prior to the robbery, at around 5:00 p.m., when the Sánese truck usually arrived, David Lock, a Calltech employee, observed a black man sitting near the smoking tent. Lock thought this was “odd” as the man was not a Calltech employee.
At around 7:15 p.m., approximately two hours behind schedule, the Sánese truck
Lock, who was taking another smoking break at the time, witnessed the robbery. The man whom Lock had noticed earlier fired a shot over Lock’s head and then entered the back of the Sánese truck. Immediately thereafter, a champagne-colored van pulled up next to the Sánese truck, and a black man exited. The first robber, who was in the Sánese truck, handed bags of money to the second robber, the driver of the van. At this point, Lock ran, and, during his flight, he heard a second gunshot.
On October 17, 2001, agents of the Bureau of Alcohol. Tobacco and Firearms (the “ATF”) and officers of the Columbus Police Department executed a search warrant at Hopson’s residence. The agents knocked on the front door of the residence with them weapons drawn. Hopson answered, and the agents instructed Hopson to unlock the door and step away. Hopson complied, and the agents entered the living room, instructed Hopson to lie on the floor, and then handcuffed Hopson. Hopson’s wife entered the living room, and the agents had her lie on the floor and handcuffed her as well. After the agents made sure that no one else was in the house, they moved Hopson to the kitchen, and situated his wife on the couch in the living room.
Craig Brenneman, an ATF agent, placed the ATF Form 4473 that Hopson had completed for the Peddler’s Post in front of Hopson. Brenneman then informed Hop-son that he was not under arrest. Nonetheless, he read Hopson his Miranda rights, and Hopson acknowledged that he understood his Miranda rights. Soon thereafter, the agents asked Hopson whether there was another place they could talk given the “commotion upstairs.” Hopson suggested the basement. In the basement, the agents questioned Hopson, still in handcuffs, about the Sánese robberies. According to Hopson, Brenneman informed Hopson that “it’s better off to cooperate with [Brenneman] because he has a good relationship with the prosecutor.”
Eventually, Hopson confessed to involvement in both robberies. At first, he denied any knowledge of the March 27 robbery. After further questioning, however, he admitted that he drew a map of the interior of the Sánese building for the three men who committed the robbery, and that he accepted $1,000 of the proceeds afterwards, though he claimed that he did not know about the robbery until after it happened. Likewise, he initially denied any involvement in the October 8 robbery, insisting that he was at his son’s football practice at the time of the crime. After further questioning, however, he confessed to the robbery. He stated that he had informed his accomplice when the Sánese truck would arrive and where the money would be stored, and that the pair planned to have the accomplice steal the truck itself. On the afternoon of the robbery, he dropped his accomplice off at Calltech and parked across the street. But after the Sánese truck failed to arrive on time, he decided to call off the robbery, and he drove back toward Calltech. He saw his accomplice walking back from Calltech, and he attempted to wave his
During their search of Hopson’s residence, the agents seized a Glock 40 caliber pistol, which, according to ballistics testimony from the Government, was used in the October 8 robbery, and coins in wrappers unique to Sánese.
A grand jury returned a five-count indictment charging Hopson with felony firearms and Hobbs Act violations. Specifically, the indictment charged Hopson with the following offenses: (1) Making a False Statement to a Federally Licensed Firearm Dealer in violation of 18 U.S.C. § 924(a)(1)(A) in connection with Hopson’s purchase of firearms from the Peddler’s Post; (2) a Hobbs Act
Before the trial on the other counts, Hopson moved to suppress his confession to the robberies, arguing that he was not timely advised of his Miranda rights and that his waiver of his Miranda rights was not knowingly, voluntarily, or intelligently made. The district denied his motion, finding that agents properly advised Hop-son of his Miranda rights and that Hopson knowingly, voluntarily, and intelligently waived his rights.
A jury convicted Hopson on Counts 4 and 5, which involved the October 8 robbery, but acquitted Hopson of Counts 2 and 3, which involved the March 27 robbery. The district court denied Hopson’s motion for judgment of acquittal, which asserted that recent Commerce Clause decisions by the Supreme Court had altered the interstate nexus element of the Hobbs Act, and that the Government had failed to satisfy this element as presently construed. At the sentencing hearing, the district court overruled Hopson’s objection to an enhancement pursuant to U.S.S.G. § 3Bl.l(c) for Hopson’s alleged role as an “organizer, leader, manager, or supervisor” of the October 8 robbery. Hopson timely appealed.
ANALYSIS
1. Miranda Issues
Hopson advances a trio of Miranda-related claims, none of which is meritorious. When this court reviews a district court’s denial of a motion to suppress evidence, the district court’s findings of fact are reviewed for clear error, while its conclusions of law are reviewed de novo. United States v. Cole,
First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception. Second, the waiver must have been made with full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if “the totality of the circumstances surrounding the investigation” reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.
Moran v. Burbine,
In denying Hopson’s motion to suppress, the district court concluded that Hopson voluntarily and intelligently waived his Miranda rights before confessing to his involvement in the Sánese robberies. The court determined that Hopson was “in custody,” as “[h]e was handcuffed, and there is nothing in the record that would indicate that he could simply walk away.” However, the court noted that “[t]here is no dispute ... that the Miranda warning was given in full by Agent Brenneman to the defendant,” and it concluded that Hopson fully understood his rights before waiving them. The court also found that
there was no evidence of any coercion in this case. There is no question that the defendant was handcuffed. But that fact alone simply means that he was in custody. Beyond that, there was no other indication of any type of intimidation, no testimony that any threats were made.
In sum, “looking at the totality of the circumstance,” the district court determined that “the defendant understood the Miranda warning and made a knowing and voluntary relinquishment of any rights that he might have had by giving a statement that he made to the detective and to the agent from the Bureau of Alcohol, Tobacco and Firearms.”
A. The Completeness of the Miranda Warning
For the first time on appeal.
As Hopson stresses, the Supreme Court held in Miranda that “an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation.”
It is true that the agents did not testify specifically that they informed Hopson that he had a right to an attorney before and during questioning. See J.A. at 79-80 (testimony of Agent Brenneman that he “read [Hopson] his rights” and informed Hopson “that he had a right to an attorney, and if he couldn’t afford one, that one would be appointed for him”); J.A. at 74-75 (testimony of a Columbus police officer that Agent Brenneman “did a standard Constitutional rights notification” and that Hopson was informed that “he had the right to a lawyer”); see also J.A. at 69 (testimony of Hopson that Agent Brenneman “read me my rights”). However, Hopson did not raise this alleged omission in moving to suppress his confession, and he did not respond when the Government asserted that “[t]he defendant does not dispute ... that he was given his rights” (R. 48; Tr. Suppress. Hr’g at 50) or when the district court stated that “the defendant ... agree[s] that the Miranda warning was given in full” (J.A. at 53). Thus, the district court reasonably inferred from Hopson’s and the agents’ testimony that Hopson received a complete Miranda warning, and it did not plainly err by failing to explore sua sponte the adequacy of the Miranda warning.
United States v. Tillman,
They had the right to remain silent, the right to the presence of an attorney if they so wish, they are not required to answer any questions and if they decide to answer questions they can stop and do so, and if they cannot afford an attorney one will be appointed before they answer any questions.
Id. at 140. This court held that this warning was inadequate because of the “dangerous omission” of “perhaps the most critical” element of a Miranda warning — a warning that any statements made by the defendant could be used against him. Id. at 141. The court noted “[i]n addition” that “the police failed to convey to defendant that he had the right to an attorney both before, during and after questioning.” Id. Unlike in the present case, however, the defendant apparently raised the adequacy of the Miranda warning in the district court. Where the defendant did not object to the asserted omission, the Government was in no position to elicit further testimony as to the completeness of the Miranda warning. Tillman does not support the proposition that a district court
B. Voluntariness of Hopson’s Waiver of his Miranda Rights and his Confession
The district court’s finding that Hopson voluntarily waived his Miranda rights and confessed to the robberies was not clearly erroneous. Hopson argues that the agents “created an inherently coercive atmosphere” by confronting his wife with a rifle and handcuffing her, by separating him from his wife by moving him downstairs, and by continuing to question him as the time for his children to return from school approached. He asserts that the district court ignored this “atmosphere of coercion” when it ruled on his motion to suppress.
Sufficient evidence supports the district court’s conclusion that Hopson voluntarily waived his Miranda rights and confessed to the robberies. Agent Brenneman told Hopson “that he was not under arrest, was not going to be placed under arrest[,] and when we left the house at the conclusion of the search warrant, that [he] would remain at the scene and not go with us and be placed under arrest.” When the agents asked Hopson whether there was a place other than the kitchen where they could talk, it was Hopson who suggested the basement. In the basement, the agents provided Hopson an extra pair of handcuffs for his comfort, and everyone “joked” about this. Additionally. Hopson and a Columbus police officer “laughed” about Sanese’s head of security, a mutual acquaintance. While the agents did place Hopson in handcuffs, and while Hopson testified that he felt “coerced” and feared for his wife and children, this evidence, when placed in the context of the totality of the evidence, does not compel a finding of coercion.
Hopson’s argument that the district court disregarded evidence of an “atmosphere of coercion” is unavailing, notwithstanding Hopson’s reliance upon United States v. Finch,
Nor does Finch require a finding of coercion under the present facts. The Finch court cited a number of facts contributing to its conclusion that the defendant’s confession to cocaine possession was involuntary: the officers broke down the front door of the defendant’s house, broke down a locked bedroom door, and confronted the defendant, his mother, and his girlfriend with drawn guns; the officers detained the three; and the officers threatened to arrest the defendant’s mother and companion unless the defendant confessed. Id. at 355. The court’s finding of coercion rested primarily on the fact that the officers threatened to arrest the defendant’s loved ones, a circumstance not present in the instant case. Id. at 356 (stressing that “threats to arrest members of a suspect’s family may cause a confession to be involuntary”).
C. Legality of Hopson’s Detention
The district court did not commit plain error by failing to deem Hopson’s confession the product of an illegal deten
Importantly, though, when a detention matures into a full-fledged arrest, the Fourth Amendment demands that the seizure be supported by probable cause. Centanni,
For the first time on appeal, Hopson argues that his detention violated the Fourth Amendment. Hopson acknowledges that, under Summers, the agents were entitled to detain to him to facilitate the execution of the search warrant. He contends, however, that the agents’ actions do not fall within the Summers exception because the agents went to the house with the purpose of interrogating him and because the length and scope of the detention exceeded that necessary to facilitate the execution of the warrant.
It was not plain error for the district court to fail to suppress Hopson’s confession as the product of an illegal detention. Assuming for argument’s sake that the agents’ detention and questioning of Hop-son matured into (or was from the start) an arrest, and that the agents’ conduct was not justifiable under Summers, it is not obvious from the record that the agents lacked probable cause to arrest Hopson. See Crockett v. Cumberland College,
The district court did not commit plain error by failing to recognize a “prejudicial misjoinder” problem. “Prejudicial misjoinder,” to use Hopson’s term, occurs “where the count justifying the joinder was not alleged by the government in good faith, i.e., with the reasonable expectation that sufficient proof will be forthcoming at trial.” United States v. Adkinson,
Hopson alleges that he was a victim of prejudicial misjoinder because the Government could not have had any reasonable expectation of convicting Hopson of the March 27 robbery. “The inclusion of the March 2001 counts in the same indictment charging him with the October 2001 robbery and firearms counts,” Hopson asserts, “was simply a way for the government to expose the jury to evidence of another violent crime that would not otherwise be admissible against him under Fed. R.Evid. 404(b).” Hopson concedes that the plain error standard applies to this claim because his trial counsel failed to raise the issue in the district court.
Contrary to Hopson’s charge, the Government did present significant evidence connecting Hopson to the March 27 robbery, either as a principal or as an aider and abettor. In particular, the Government presented the following testimony: (1) Sanese’s head of security testified that one of the three robbers caught on videotape by a security camera resembled Hop-son in height and gait; (2) various witnesses testified that Hopson was privy to generally confidential information concerning Sanese’s security and money storage practice; and (3) Agent Brenneman testified that Hopson confessed to drawing a map of the inside of the Sánese building for the robbers and to accepting $1,000 of the proceeds. Thus, the evidence of Hop-son’s guilt of the March 27 robbery, while hardly overwhelming, was not so meager that it was plain error for the district court not to declare a mistrial sua sponte or take other action. See Olano,
3. Jury Instruction Issues
The district court did not commit reversible error in instructing the jury on the jurisdictional element of the Hobbs Act or in responding to a query from the jury concerning the finding necessary to convict Hopson of aiding and abetting the crime of carrying and brandishing a weapon during a crime of violence.
“This circuit has set a high standard for reversal of a conviction on the grounds of improper instructions.” United States v. Sheffey,
A. Jury Instruction on the Jurisdictional Element of the Hobbs Act
Contrary to Hopson’s argument, the district court correctly instructed the jury on the jurisdictional element of the Hobbs Act. “In order to prevail under a Hobbs Act violation, the Government must prove two elements: 1) interference with interstate commerce, which is a jurisdictional issue; and 2) the substantive criminal act, which in the instant case is ... robbery.” United States v. Turner,
The district court instructed the jury on the jurisdictional element as follows:
I also use the term “interstate commerce.” Interstate commerce means commerce, business activities or travel between one state, territory or possession of our country and another state, territory or possession of our country. The government must prove a substantial effect on interstate commerce. A robbery may substantially affect interstate commerce if you find that the victim of the robbery conducted a substantial part of its business in the movement of articles among the various states. If you find [that] the victim conducts a substantial part of its business through interstate commerce, then the effect on interstate commerce of these robberies need only be minimal.
J.A. at 233-34 (emphasis added).
Hopson argues that, by including the italicized language in the instruction, the district court “diminished the government’s burden of proof below that of proof beyond a reasonable doubt and constituted error.” Hopson acknowledges the legion of authority construing the jurisdiction element as requiring only a de minimis effect on interstate commerce, but counters that these cases simply set the standard controlling appellate review of the sufficiency of the evidence supporting a conviction.
Hopson’s argument is unavailing. The challenged instruction accurately defines the jurisdictional element, as construed by the Sixth Circuit, and in no way suggests that the jury should apply a standard lower than “beyond a reasonable doubt” to this element. Considered in their entirety, the instructions state that the jurisdictional element requires proof beyond a reasonable doubt that Hopson’s conduct had at least a “minimal” effect on interstate commerce, not that the “minimal” evidence satisfies the element.
The district court did not commit plain error in responding to a question from the jury concerning the finding necessary to convict Hopson of aiding and abetting the carrying and brandishing of a firearm during a crime of violence. During the jury’s deliberations, the foreman submitted the following question to the district court: “If the Defendant owns or supplies the firearm used in Counts 2 or 4, can he be found guilty of aiding and abetting the firearm? OR Must [sic] Defendant physically possess the gun at the time of crime [sic]?” J.A. at 59. The district court responded with the following instruction:
To be convicted of aiding and abetting with regard to Counts 2 and 4, the Defendant does not have to physically possess the firearm at the time the crime of violence is committed, provided that you must find by proof beyond a reasonable doubt that the Defendant participated as an aider and abettor, as I have already defined for you, and that the Defendant knew the actual perpetrators of the crime would use, carry or brandish the firearm in the crime of violence.
Id.
On appeal, Hopson claims that this instruction was defective because it did not advise the jury that, to convict Hopson of aiding and abetting the offense of carrying and brandishing a firearm during a crime of violence, it had to find that Hopson “performed some act that directly facilitated or encouraged the use or carrying of a firearm.” According to Hopson, the Government’s aiding and abetting theory required proof of three elements: (1) that the defendant aided and abetted the commission of the underlying crime of violence; (2) that the defendant had actual knowledge that the principal offender possessed a firearm; and (3) that the defendant performed some affirmative act relating to that firearm. Hopson maintains that, in response to the jury’s query, the district court should have enumerated the elements of the aiding and abetting claim, and he contends that, while the court’s response adequately captured the first and second elements, it omitted the third element.
Initially, this court reviews Hopson’s claim under the plain error standard, as Hopson’s trial counsel failed to raise the issue in the district court. See United States v. Pearce,
The district court did not plainly err in responding to the jury’s question. Contrary to Hopson’s assertion, in the
Moreover, the jury’s query indicates that it accepted the Government’s argument that Hopson supplied the gun to his accomplice — clearly an act that “directly facilitated” the carrying of the firearm. Therefore, even if “direct facilitation” were an element of the aiding and abetting offense, the district court’s failure to advise the jury of this element was harmless error as the jury found the element anyway.
L Sufficiency of the Evidence Concerning the Jurisdictional Element of the Hobbs Act
Hopson contends that recent Commerce Clause decisions by the Supreme Court have abrogated the traditional rule that a de minimis effect on interstate commerce satisfies the jurisdictional element of the Hobbs Act. The district court properly applied the de minimis standard, as this court has previously rejected the very argument advanced by Hopson.
This court reviews de novo a district court’s denial of a motion for judgment of acquittal. United States v. Humphrey,
Hopson contends that, in light of United States v. Lopez,
As Hopson acknowledges, this court has held that the de minimis rule in Hobbs Act cases survives Lopez and Morrison. Dupree,
5. Enhancement for Leadership Role in the Offense
The district court however erred in applying the § 3B1.1 sentencing enhancement for Hopson’s role as an alleged “organizer” of the October 8 robbery. The Government bears the burden of proving that the enhancement applies by a preponderance of the evidence. United States v. Vandeberg,
§ 3B1.1(c) of the Sentencing Guidelines mandates a two-level increase in the defendant’s offense level “[i]f the defendant was an organizer, leader, manager, or supervisor” of criminal activity that involved fewer than five participants. U.S. Sentencing Guidelines Manual § 3B1.1(c) (2001). The guidelines do not define “organizer, leader, manager, or supervisor,” but they do direct the sentencing court to consider the following factors:
the exercise of decision making authority, the nature of participation in the*795 commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning and organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.
Id. § 3B1.1, cmt. n. 4. The guidelines also note that this adjustment “does not apply to a defendant who merely suggests committing the offense” and that, “[t]o qualify for an adjustment under this section, the defendant must have been the organizer, leader, manager, or supervisor of one or more other participants.” Id. cmt. n. 2 & 4. The latter condition, this court has explained, means that “a defendant must have exerted some control over at least one individual within a criminal organization for the enhancement of § 3B1.1 to be warranted.” United States v. Gort-DiDonato,
The Presentence Investigation Report recommended the application of the § 3Bl.l(c) enhancement. Specifically, the report stated
In this case, the defendant, who was formerly employed by Sánese Services as a track driver, was aware of the route that the victim truck driver would have driven on October 8, 2001, the date of the robbery. The evidence suggests that since the defendant would have known this he organized the offense with the other perpetrator. When the robbery occuxred, the defendant initially waited nearby in his van. Once the robbery started, the defendant drove the van to the Sánese truck where the co-offender provided him bags of money that the defendant placed inside the van. Two shots were fired dxxring the course of the offense. The shell casings were recovered by case agents. It was determined that the casings were from the round discharged from the Glock pistol that belonged to the defendant. This pistol was recovered at the defendant’s residence during the execution of the search warrant. Accordingly, the evidence suggests that the defendant provided the Glock firearm to the co-offender to use during the robbery. Based upon the nature of the defendant’s involvement in this offense and the guidance outlined in the Commentary, it appears that the defendant was a leader and organizer in this offense.
J.A. at 262. Hopson objected to this x’eeommendation, submitting that “the jxxry’s finding in this case was premised on a theory of aiding and abetting and there was no evidence presented which would document or demonstrate that this was planned by Dion Hopson.” J.A. at 279.
The district court applied the § 3B 1.1(c) enhancement. Specifically, it found
It’s clear in the report that this, of course, is circumstantial evidence, but I can consider that. I don’t think there was any dispute from the evidence presented at trial that the defendant, Dion Hopson, had been employed by the victim in this case, Sánese Services, and was fired and had previously actually done the route in question that was robbed with regard to the two counts of conviction.
That fact plus the fact that it was his vehicle that was identified as a part of this escapade and that the gun found at his home matched the gun discharged in the course of this escapade as well would lead me to find at least by a preponderance of the evidence that there is sufficient evidence to find that he was an organizer as the term is used under 3Bl.l(c).
J.A. at 90-91.
United States v. Vandeberg,
As in Vandeberg, the Government has not identified any direct evidence that Hopson “exerted control” over his accomplice — e.g., evidence that Hopson recruited his accomplice, evidence that Hopson exercised authority over his accomplice, or evidence that Hopson had a right to a larger share of the fruits of the robbery. Instead, the Government contends, as best we can discern, that the district court properly inferred that Hopson was the “organizer” of the offense from the fact that Hopson played “an essential role” in the offense — ie., that Hopson had knowledge of Sanese’s operations, that Hopson supplied the van used in the robbery, and that the gun used in the crime was found at his residence. Vandeberg,
CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED in part and REVERSED in part. This matter is
Notes
. The Hobbs Act reads as follows:
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.
18 U.S.C.A. § 1951(a)(2000). Section 2 of Title 18 provides that "[w]hoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.” 18 U.S.C.A. § 2(a)(2000).
. See J.A. at 83 (trial judge stating at suppression hearing that "[tjhere is no dispute, both the defendant and the two officers or agents who have testified agree, that the Miranda
. Dunaway v. New York,
. The challenged instruction is similar to the pattern instructions utilized in other circuits. Fifth Circuit Pattern Jury Instructions (Criminal) § 2.73 (West 2001) ("If you decide that there would be any effect at all on interstate commerce, then that is enough to satisfy this element. The effect can be minimal.”); Seventh Circuit Federal Jury Instructions (Criminal) 299 (West 1999) ("With respect to Count _, the government must prove that the defendant's actions affected [had the potential to affect] interstate commerce in any way or degree. This means that the natural consequences of the defendant’s actions were [would have been] some effect on interstate commerce, however minimal.”).
. Specifically, Hopson's trial counsel questioned whether Hopson could be convicted of aiding and abetting the offense of carrying and brandishing a firearm during a crime of violence if, in relation to the March robbery, Hopson simply provided a map of the site and knew that the perpetrators were going to use a gun (but did not provide the gun). Counsel also voiced the concern that the court's response might be read to endorse the theory, suggested by a prosecution witness, that there was a third individual involved in the October 8 robbery — specifically, a second individual riding in the van. Notably, counsel observed that the jury had "all the instructions on aiding and abetting,” and he did not accept the court’s invitation to comment further on the court’s proposed response.
. Under the Government’s theory of the case, Hopson appeared on the scene of the crime as the driver of the getaway van.
. We agree that the Government adduced sufficient evidence to satisfy the jurisdictional element as presently interpreted by this court. For example, Sanese's owner testified that Sánese uses money from its vending machines to purchase a variety of out-of-state goods. See United States v. Smith,
. We note that Hopson apparently failed to bring Vandeberg to the district court’s attention. While this does not constitute a forfeiture of his challenge to the application of the enhancement, it does explain the district court’s failure to address this decision.
. The additional assistance in the present case (supplying the getaway van and storing the gun used in the offense) is not more indicative of a leadership role than the additional assistance in Vandeberg (renting a storage space for loot and helping to sell loot).
. The Government fails even to mention Vandeberg in its brief. United States v. Bandy,