*2 GARZA, DeMOSS M. Before EMILIO *3 Judges. PARKER, Circuit and Judge: PARKER, Circuit M. ROBERT and Nutall Andre Raymond Brothers of con- convicted were Nutall Patrick by rob- commerce to interfere spiracy rob- by interfering with bery, weapon carrying using and bery, Patrick violence. during a that the contending appeals, to sever court, his motion denying trial and a fair right his trial, violated An- Raymond to confrontation. right his contending that also appeals, dre suffi- produce failed the Government interstate an effect cient AFFIRM. We commerce. PROCEEDINGS I. AND FACTS robbery oc- 29, 1995, a December On Express America Cash Ace at the curred San An- Road in Fredericksburg store man, closing. One just tonio, after Texas money from demanded gun, awith armed Mil- Charles manager America Ace to enter Milburn man ordered The burn. Milburn safe. open the store and disarmed the store door to opened store, men As the entered the alarm. his face. over a mask placed the robber ordered man money, the receiving After down, hands Milburn’s tied to sit Milburn wallet. Milburn’s took together, attempted 1996, man February On America Ace robbery at the to commit Antonio. in San Road Creek on Cross Margaret Jr., Atty., Gay, H. Joseph Lenny Al- approached gun awith A man TX, Antonio, for Leachman, San Feuille The man the store. exited as she corta Plaintiff-Appellee. and or- head at Alcorta’s a gun pointed Joseph Fuentes, Henry Carolyn M. disarm the store re-enter her dered TX, Gary Nu- Antonio, for San Bemporad, alarm, disarming the Upon alarm. tall. the safe. She open ordered was Aleorta unsuc- but was open safe attempted to Kil- McGinnis, Lochridge & Pope, Trida purse, Alcorta’s stole man cessful. Nutall. TX, Raymond Austin, for gore, including her identification approxi- America store. Milburn identified various mately in cash. $500 items that belonged to Appellants were similar to items by robber, used
Following robbery attempt- and the including a mask ed at and a stores, pillow the Ace flowered America San police Antonio cáse. detective also William Biesen- Milburn identified purple bach conducted surveillance of two men in strap found apart- early March and 1996. April, Biesenbach ment. straps These are used Ace by later identified these men as Nutall America to money. bind Milburn said also and Raymond Nutall. Biesen- Detective exhibit, the Government’s a semi-au- bach followed the they men as stopped tomatic pistol belonging to Robert Taylor, at, and by drove approximately 10 offices was similar to the firearm used *4 of four different cashing check businesses robber. In statements, written Ap- both Antonio, in San Texas. Detective Biesen- pellants confessed to in participating bach estimated that the two by men drove Fredericksburg Road Ace America rob- the businesses approximately 25 times. bery. Biesenbach identified two vehicles that The Government produced also evi- in driving by men used the businesses: Gary dence of Nutall Raymond and a Nu- black Nissan and a 200SX white Nissan tall’s involvement in Raymond Altima. the February, Nutall owned the Gary attempted 200SX robbery and Nutall owned the Altima. at the Cross Creek During the drive-bys, Gary Nutall drove Ace trial, America store. At Alcorta the vehicle Raymond while Nutall in sat jacket identified black a found in Ray- the passenger seat. On a number of occa- mond car jacket Nutall’s as the that the sions, Biesenbach Gary observed Nutall robber wore. She also testified a ski cover the plate license on his Altima with mask in gym found a bag in Gary Nutall’s plate license from another vehicle or car was the same color as the one worn switch plates before driving by businesses. by the robber. The Government intro- Biesenbach also observed Raymond Nutall duced by evidence located the San Anto- place gyma bag in Gary Nutall’s car on police nio Raymond at apartment, two occasions. including license, Alcorta’s driver’s man- 1, 1996, April On stopped Biesenbach ager’s card, book, address per- and other the Altima and Gary arrested Ray- and sonal belongings. statements, In written mond Nutall. Biesenbach testified that he both Appellants to confessed the Febru- gym located a bag in the back seat of the ary, 1996 attempted robbery of the Cross car revolver, mask, contained a a ski a Creek Ace America store. mask, rubber gloves, eases, pillow knife, The Government also offered evidence binoculars, and duct tape. Biesenbach fur- that the Appellants ther exhibited a in- testified sudden that when stopped he in crease Appellants, available cash plate following the license the De- the Altima cember, belonged to robbery. 30, another vehicle On that the and December plates 1995, Altima’s were in Gary $5,460 the trunk. An Nutall paid toward the officer assisting in the arrest purchase testified that aof white Nissan In Altima. he gloves found Nutall’s front January, he returned to the Nissan In, pants pocket. statements, written both dealership alarm, to install a player, CD an Appellants “casing” confessed to the vari- and tinting there, and while one showed ous cashing check businesses. of the salespeople in the clothes trunk that recently
At purchased. had February, presented Government evi- dence Raymond Raymond Nutall and Nutall purchased Nu- a Nissan tall’s involvement December, 200SX, in the and also made purchases cash robbery the Fredericksburg Road Ace clothing jewelry. to reference clear included count in a five charged were Appellants erred (3) the trial Nutall; and to interfere conspiracy with indictment evi- irrelevant erroneously it 18 U.S.C. robbery, by commerce
with with We AFFIRM. dence. interference counts two § §§ U.S.C. robbery, 18 Four), (Counts Raymond Andre Two and A. a firearm carrying using and counts Commerce on Interstate 1. Effect vio- crime of to a in relation during and claims 924(c)(1) (Counts §§ lence, 18 U.S.C. finding support insufficient Five). Three com interstate obstructed that his the evidence Despite his federal element merce, an essential rob- denied later him, Gary Nutall against reviews This Court jurisdiction. criminal December, store America Ace bing sufficiency evidentiary challenges such Ace America rob attempting to verdict, favorable to light most in the cashing busi- casing check January, and juror a rational whether inquiring rob them. plans making nesses element found each have could confession, written respect With doubt. beyond reasonable proven *5 not he could explained Nutall Collins, 40 F.3d v. States United See well, he and when very nor write read Virginia, Cir.1994) v. Jackson (5th (citing FBI written the signed 61 L.Ed.2d 307, 99 S.Ct. 443 U.S. the what know Henry, he did Agent (1979)). claims that also He said. statement amount the must address Initially, we alleged the role in his un- commerce on interstate required effect to Henry continued Agent crimes because this evidence The Act. the Hobbs der an exten- him with and threaten question re- on impact the satisfies case addition, Gary In sentence. prison sive under jurisdiction Act for Hobbs quired brother, his other explained that Nutall 119 F.3d v. States United money pur- to Nutall, the gave him Paul Ex- Cir.1997). Cash America (5th Ace to a took him white the Nissan chase that cashes company ais nationwide press new some purchase to clothing store cash- Ace money orders. checks sells alibi two Finally, presented clothes. out-of-state in-state from es checks neph- and his witnesses, his brother-in-law cashed, Ace are checks Before banks. atwas Gary Nutall ew, who testified legitimacy the verify calls phone places night the the on family his home suffi- there is and whether checks was robbed. Ace sells the checks. cover funds cient all on Appellants convicted jury A out- from are drawn orders money counts. and receives sends and Ace banks of-state points from money to and wire-transferred II. ANALYSIS outside Texas and outside arguments raises Raymond electronically addition, Ace States. (1) failed the Government appeal: on Tax its for customers. returns files tax on effect interstate requisite show Seattle, Wash- are returns transferred (2) erred court commerce; the district typically maintain stores Ace ington. relating to jury instructions gave it stores. at their of cash amounts large commerce. effect on interstate depletion Government, relying (1) on appeal: three issues Nutall raises evidence theory, offered of assets its discretion abused $27,000 than more (2) received Appellants sever; dis- motion to his denying theft robbery. The Ace America from in ad- error Bruton court committed trict America Ace money prevented the confession mitting conducting its business which operated in judicial efficient administration. See Unit- interstate commerce. It is clear that this Lindell, ed States v. 881 F.2d (5th has approved depletion Cir.1989). of assets theory aas method for showing an effect In order to establish prima facie on interstate commerce. See United case warranting severance for the purpose Collins, (5th 40 F.3d 99-100 of introducing exculpatory Cir.1994). Further, the Government of- co-defendant, the defendant must show: fered evidence that prevented (1) a bona fide (2) need for the testimony; Ace America from being able to cash one (3) substance of the testimony; its check on day of the robbery. The exculpatory effect; (4) nature and Government established the requisite ef- the co-defendant would in fact testify if the fect on interstate commerce. severance were granted. See United Broussard, States v. 80 F.3d
2. Instruction on Effect (5th Cir.1996). Interstate Commerce After a careful review of Gary Nutall’s Raymond Nutall contends that the dis- motion to sever and Raymond Nutall’s affi- trict court erred submitting the inter- davit stating that he would testify, we do state commerce instruction to jury be- not find that the district court abused its cause there was insufficient evidence to discretion in denying severance. Ray- prove required effect. In particular, mond proposed testimony stated: Raymond Nutall argues that the trial court called, required should have If I would testify substantial rather that my brother than a de nothing minimis had effect on to do with interstate the robber- *6 commerce. in The ies case. I court’s know instruction this because requiring a another de person minimis effect told was not an me that he had com- of abuse mitted discretion. those Appellant’s The argu- robberies and also told me ment is that foreclosed was not 119 F.3d involved. If called to that, testify, 1215 I (holding at will light in name person. that aggre- gation principle, particular “the conduct at The substance of Raymond pro- in issue any given case need not have posed testimony provided, best, at “unsup- substantial effect upon interstate com- ported, self-serving statements that were merce.”). only tangentially exculpatory.” United States v. Daly, 1076, (5th 756 F.2d 1080
B. Gary Patrick Nutall Cir.1985). We find abuse no of discretion 1. Severance Fair Trial in denying Gary Nutall’s severance motion. Gary Nutall contends that the 2. Right to Confrontation district court erred in refusing to sever the trial. Specifically, argues that the dis Gary Nutall contends that his trict court’s denial of severance compro Sixth Amendment Right to Confrontation mised his rights under the Sixth Amend was when violated the confession of his co- ment to call witnesses in his defense. We defendant’s brother was introduced at review the district court’s denial a mo joint of their Nutall, trial. Raymond in a tion for severance for abuse of discretion. statement, written confessed to robbery States, See v. United 534, 506 U.S. conspiracy Zafiro incriminated his broth 539, 933, 113 (1993). 122 er, S.Ct. L.Ed.2d 317 Gary Nutall. Because the confession Appellant The must specific demonstrate was against Nutall, inadmissible compelling prejudice. See United States v. Government blacked out Gary Nutall’s Capote-Capote, (5th 1100, 946 F.2d 1104 name with a dark trial, marker. At how Cir.1991). A showing prejudice ever, must be the Government Ray introduced balanced against the public’s interest mond Nutall’s confession which included a
188
when, disre-
harmless
considered
may be
address.
home
Gary Nutall’s
to
reference
confession,
co-defendant’s
n GaryNutall
his
garding
to
reference
contends
against
ample evidence
is
there
otherwise
equivalent
functional
“the
was
address
Kelly,
v.
States
United
See
defendant.
a con
reviews
Court
him. This
naming”
Cir.1992)
(5th
(recog-
1145, 1150
973 F.2d
See United
novo.
challenge de
stitutional
standard).
“[B]e-
(5th
error
nizing harmless
1023, 1037
Asibor,
F.3d
109
v.
States
be
-
can
error
constitutional
U.S. -,
a federal
118 S.Ct.
fore
denied,
Cir.), cert.
to
able
harmless,
must be
is
(1997). Bruton
held
182
254,
L.Ed.2d
139
be-
was harmless
that it
a belief
co-
to
declare
references
remove
sues,
failures
v.
Chapman
doubt.”
a reasonable
yond
dis
for abuse
defendants, are reviewed
824, 17
18, 24, 87 S.Ct.
U.S.
Fletcher,
386
California,
121
v.
States
United
See
cretion.
must
(1967).
therefore
We
705
Cir.1997).
L.Ed.2d
(5th
187, 197
F.3d
Bruton-
whether,
absent
determine
Clause
The Confrontation
reasonable
confessions,
was a
there
tainted
right
guarantees
Amendment
Sixth
have
would
the defendant
that
probability
confronted
“to be
defendant
a criminal
v. Lew-
See
acquitted.
been
In Bru
him.”
against
witnesses
Cir.1986).
(5th
1278,
n. 11
is,
States,
88 S.Ct.
391 U.S.
ton v. United
find,
record, we
review
our
After
(1968),
Supreme
1620, 20 L.Ed.2d
doubt,
evi-
a reasonable
beyond
deprived
defendant
that a
held
Court
is,
it did
harmless;
was
dence
Clause
the Confrontation
under
rights
his
the convictions.
contribute
prejudicially
con
co-defendant’s
non-testifying
his
824.
87 S.Ct.
Chapman, 386
See
participant
as
naming
him
fession
confession
own
his
provided
Gary Nutall
joint
even
at their
is introduced
De-
committing the
he confessed
to consider
is instructed
jury
if the
geta-
serving as
cember
the co-defendant.
against
Fur-
robbery.
February
in the
way driver
Marsh, 481 U.S.
Richardson
check
casing various
ther,
(1987), the
L.Ed.2d
S.Ct.
in San Antonio.
cashing businesses
of Bruton
application
considered
days fol-
that, in the
showed
Government
confession, holding that
a redacted
robbery,
the December
lowing
*7
co-
non-testifying
of a
confession
redacted
purchas-
spree,
spending
large
on a
went
the confes
when
is admissible
defendant
ad-
clothing. The
and
ing an automobile
any
name
the defendant’s
omits
sion
confessions, while
redacted
of the
mission
existence.”
or her
to his
“reference
other
error.
error,
harmless
was
however,
rule,
applies
protective
Bruton’s
confes
non-testifying co-defendant’s
ato
Evidence
Admissibility
S.
replaces
confession
the redacted
sion
Testimony
dele
an
with
obvious
name
defendant’s
district
that
contends
Gary Nutall
185,
U.S.
523
Maryland,
Gray v.
See
tion.
evi-
irrelevant
erroneously admitted
court
(1998).
294
1151,
L.Ed.2d
140
S.Ct.
118
him
unfairly linked
that
pistol
aof
dence
we
acknowledges,
The Government
addition, he
In
robbery.
December
this
the confession
that
agree,
allowed
court
the district
that
contends
out
blacking
redacted
case, having been
and asserts
hearsay evidence
inadmissible
but
a marker
with
name
Gary Nutall’s
irrelevant
of the
admission
address,
to the
leaving the reference
re-
prejudicial
was
hearsay evidence
uncon-
found
type of evidence
exactly
reversal.
quires
admission
by Gray. The
stitutional
error.
was
The Pistol
a.
pistol
argues that
Gary Nutall
undercut
however, did not
Gray,
court should
trial
and the
relevant
error was
Bruton
holding that
Circuit’s
this
189
have excluded it under Fed.R.Evid. 401.
b. Hearsay Testimony
All evidence offered at
subject
trial is
to a
Gary Nutall contends that the
“
threshold
“relevancy.”
test of
‘Relevant
district
erroneously
admitted hear
means
evidence’
evidence
any
having
ten-
say testimony. The Government concedes
dency to make the
any
existence of
fact
particular
testimony was hearsay,
that is of consequence to the determination
but contends that its admission was harm
of the action more probable or
proba-
less
less and does not require reversal. The
ble than it would be without the evidence.”
Government bears the burden of showing
Fed.R.Evid. 401. “All relevant evidence is
the error
prejudicial.
was not
See
...
admissible
[evidence
is not rele-
Olano,
United States v.
507
vant is not admissible.” Fed.R.Evid. 402.
113 S.Ct.
(1993).
the description weapon of the described in reasons, For the above the Appellants’ Gary Nutall’s Further, confession. convictions are AFFIRMED. Milburn, Charles manager the of the Ace store in December, robbed testified that DeMOSS, Circuit Judge, specially the weapon trial resembled concurring: the weapon used in the robbery. The weapon introduced at trial was relevant to our Because Court evenly divided in its the crimes at issue and was properly ad- en banc reconsideration of whether the mitted. Act, Hobbs § 18 U.S.C. can con- be
190 noth- is There robbery.” by state another of a the stitutionally applied nor Act Hobbs of the language the ing in Hick- v. in States United store local retail a con- supports that history Cir.1999), recog- legislative (5th its I man, 230 F.3d 179 make intended this it was of that tention panel of a holding the that nize in local robberies out of 119 v. federal States in United Court binding that intercourse. Cir.1997), way still affect (5th no is 1205 F.3d of judgment in the I concur precedent in decision Court’s Supreme the Under this ease. in affirmance 549, 566- Lopez, 514 v. States United by (1995), stated reasons However, for L.Ed.2d S.Ct. in in his dissent Higginbotham with Judge charged are courts the federal I have which reasons for the criminal Hickman line between drawing a of task He v. States see United previously, criminal “truly stated local” is which conduct Cir.1997) (DeMoss, (5th bert, in effect. “truly national” is which conduct v. States United part); in J., dissenting to reconcile view, impossible it is my Cir.1997) (De (5th Miles, F.3d 235 of Department which upon theories remain I concurring), Moss, J., specially Act Hobbs contends Justice robber local by prosecuting convinced with robberies local applied be should (1) the effect theories ies on by the forth analysis set teaching pur for aggregated can be local robberies later or Sooner Lopez. Supreme Court inter effect an determining poses back down must either Court Supreme cash (2) taking commerce; state or Lopez enunciated principles “depletion causes store local retail from a consti- Act be cannot Hobbs that the rule ability of that reduces of assets” I robberies. to local tutionally applied com in interstate participate seek case to in this the defendants urge (3) effect” a “de minimis merce; and point. certiorari writ to sus is needed on interstate toAct Hobbs applicability tain robberies, Department local
these language plain stretching
Justice the bounds beyond well Act
the Hobbs Congress.
contemplated put were this case defendants Po- Antonio by the San surveillance under BEETS, Petitioner- Betty and ar- Lou investigated were Department, lice Appellant, Depart- Police Antonio by the San rested under with violations ment, charged were residence their law, and had Texas Director, De JOHNSON, Texas Gary L. by a state issued a warrant searched Justice, Institu partment of Criminal Anto- to San given In statements judge. Division, Respondent-Appellee. tional detectives, the de- Department nio Police to commit- confessed essentially fendants No. 98-41482. for But law. Texas under ting robberies Appeals, *9 prosecu- the federal interposition Fifth Circuit. would case, individuals these tions in tried, convicted charged, have been 28, 1999. June robbery statute. Texas violations Act the Hobbs language, express By its of “obstruct- the conduct criminal
makes be- affecting commerce or delaying,
ing, a point state one point
tween