UNITED STATES of America, Plaintiff-Appellee, v. Sinisa MURATOVIC, Defendant-Appellant.
No. 11-3889.
United States Court of Appeals, Seventh Circuit.
Argued June 4, 2013. Decided June 25, 2013.
719 F.3d 809
Finally, the union complains that the arbitrator‘s award and clarification are unclear and leave the parties unsure of how to act in absence and leave situations. While lack of clarity can create problems for parties in arbitration, this court is not the venue for clarifying an arbitration award. Under the
The judgment of the district court is AFFIRMED.
Matthew B. Burke (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
Beau B. Brindley (argued), Attorney, Law Offices of Beau B. Brindley, Chicago, IL, for Defendant-Appellant.
Before FLAUM, SYKES, and HAMILTON, Circuit Judges.
FLAUM, Circuit Judge.
Sinisa Muratovic pled guilty to a three-count indictment charging him with attempted robbery in violation of the
A. Factual Background
During his change of plea hearing, Muratovic admitted to planning a robbery of a truck that he believed would carry a large amount of drug money from Illinois to California. For four to five months in 2008, Muratovic and his co-conspirators planned the robbery and conducted surveillance on the truck. On December 7, 2008, the group met to finalize the robbery plan. They would follow the truck as it left Illinois, and the robbery would occur at a highway rest stop after one of the passengers had exited to use the restroom. At that time, the co-conspirators would don disguises, rush toward the remaining occupant of the truck, threaten that person at gunpoint, and steal the money, using violence if necessary.
That same evening, the co-conspirators invited Individual A, a police informant who agreed to wear a wire, to participate in the scheme. In the early, pre-dawn hours of the next day—December 8—Muratovic and his crew met in the parking lot of a Niles grocery store, carrying firearms intended for use to threaten or shoot the targets of the robbery. From this meeting, they traveled to another location to pick up yet another gun. Sufficiently armed, the co-conspirators located their target, a yellow truck, in an Addison, Illinois parking lot and began conducting additional surveillance.
Next, two co-conspirators went on several supply runs while the others remained at the Addison parking lot, watching the truck. The two purchased additional items for use in the robbery: a knife, two cans of pepper spray, gas cans, duct tape, clothing for disguising themselves, and a magnification scope. Equipped with everything needed to consummate their plan, the co-conspirators continued sitting in the Addison parking lot, waiting for the truck
After Muratovic‘s guilty plea, the government submitted its version of the offense (the “Government‘s Version“), providing additional details about the plot. It attached transcripts made from the recordings of Individual A‘s meetings with Muratovic and the other co-conspirators. That transcript revealed the extensiveness of the robbery plot and highlighted Muratovic‘s role in the robbery.
Muratovic also offered additional details in his postarrest interview, the report of which was attached to the Government‘s Version. He described how he drove his co-conspirators to the truck‘s location to “case” the truck and explained how he sought out a second gun for the robbery. He admitted to carrying guns the night of the planned robbery and to having guns with him in the car while driving to find the truck in Addison. Muratovic also explained the need for the gas cans. The targeted truck could travel farther without refueling than Muratovic‘s car, so the conspirators bought the gas cans to refuel more quickly on the highway shoulder rather than exiting for a gas station. They had even filled up the gas cans on the night planned for the robbery.
Finally, Muratovic explained why he left in the afternoon without completing the robbery. While he and his crew were waiting, he saw a car pull into the parking lot with the truck, remain for five minutes, and then leave. Muratovic thought the driver of this car was the driver of the truck. He believed that the driver left the parking lot after spotting Muratovic. The yellow truck never left the Addison parking lot, and the co-conspirators were unable to execute their plan on December 8.
B. Procedural History
Muratovic did not dispute these facts and did not submit his own version of the offense. Nor did Muratovic dispute the findings of the pre-sentence report (PSR), which the district court adopted without change. He ultimately received a 90-month prison term and now appeals from his conviction, raising three grounds of error. First, he suggests that no factual basis existed for Hobbs Act jurisdiction. Second, he attacks his attempt conviction, suggesting the absence of a factual basis that he took a substantial step toward commission of the robbery. Finally, he argues that conspiracy to violate the
II. Discussion
Muratovic raised none of these issues before the district court so we review each only for plain error. United States v. Arenal, 500 F.3d 634, 637 (7th Cir.2007). That standard requires “obvious” error that is “clear under current law.” United States v. McGee, 60 F.3d 1266, 1271-72 (7th Cir.1995).
When a defendant pleads guilty, the court must find “a factual basis for the plea” before “entering judgment.”
A. The Record Provides a Factual Basis to Support a Finding that Muratovic‘s Hobbs Act Robbery Scheme Affected Interstate Commerce
The
Muratovic hatched a plan to steal money from individuals traveling cross-country for the express purpose of making a purchase with that money. “[C]ommerce is affected when an enterprise, which either is actively engaged in interstate commerce or customarily purchases items in interstate commerce, has its assets depleted through [robbery], thereby curtailing the victim‘s potential as a purchaser of such goods.” Bailey, 227 F.3d at 798-99 (quoting United States v. Elders, 569 F.2d 1020, 1025 (7th Cir.1978)); accord Shields, 999 F.2d at 1098; United States v. Rindone, 631 F.2d 491, 493-94 (7th Cir.1980) (per curiam). We have labeled this jurisdictional rationale the “asset depletion theory.” Here, Muratovic targeted a truck he believed would travel from Illinois to California with the purpose of engaging in a commercial transaction.2 This plan
Muratovic protests that “the government did not allege that this truck actually contained money or that the truck would have actually crossed state lines.” His protest, however, is misplaced. The record abounds with evidence suggesting Muratovic and his co-conspirators planned to rob the truck after it crossed state lines. The PSR explains that “[d]efendant Muratovic explained they would not rob the truck until it left Illinois.” The conversations captured on the informant‘s wire confirm this aspect of the plan. They make clear that the co-conspirators believed the truck would carry large amounts of drug money to California and return to Illinois with drugs. And their preparations reveal an intention to follow the truck for more than a minimal portion of that drive: they had purchased gas cans and gasoline to allow for quicker refueling on the side of the highway, rather than at a gas station. Finally, Muratovic‘s co-conspirators explicitly stated their reason for planning to rob the truck only after it had crossed the state line: “It is better if we do not hit them in Illinois. If we hit them in Illinois, they would think that somebody from the local area hit them.”3
Admittedly, the government offered no proof that the yellow truck cased by Muratovic and his fellow conspirators actually did contain drug money and actually was slated for a drug run to California. It didn‘t need to offer such proof, though, if the facts as the defendant believed them satisfy the jurisdictional element. See Bailey, 227 F.3d at 798-99. After all, “mistake of fact is not a defense to an attempt charge.” United States v. Cote, 504 F.3d 682, 687 (7th Cir.2007); see also id. (noting that the inability to complete the crime “does not diminish the sincerity of any efforts to accomplish that end” (quoting United States v. Cotts, 14 F.3d 300, 307 (7th Cir.1994))). Like Muratovic‘s case, Bailey also involved a defendant planning to steal a drug dealer‘s drug money. 227 F.3d at 798-99. In reality, the targeted victim was not a true drug dealer but an FBI informant with no intention of ever selling drugs. Thus, the Bailey defendant argued, the effect on interstate commerce was “purely imaginary.” Id. at 798. Nevertheless, the Bailey defendant‘s belief that he would rob a cocaine dealer provided the realistic possibility of interstate effects because “the robbery of cocaine dealers has an effect on interstate commerce.” Id. at 799; see also Thomas, 159 F.3d at 297-98. Such belief provides the requisite interstate effect in this case, too. Muratovic readily admitted that he believed the truck “periodically traveled from Illinois to California carrying hundreds of thousands of dollars to be used to purchase large quantities of marijuana.” If anything, Muratovic‘s situation presents a stronger case for jurisdiction than found in Bailey. Bailey relied on the more general interstate effect of cocaine trafficking in the aggregate, not on any beliefs the Bailey defendant held about the interstate activities of the specific drug
United States v. Watson, 525 F.3d 583 (7th Cir.2008), does not require otherwise. That case also involved stolen money, and the defendant challenged his conviction on jurisdictional grounds. The government offered two theories in support of jurisdiction—the asset depletion theory described above and a separate theory that the money itself is an article that travelled in interstate commerce. Id. at 590. Watson rejected only the second: “if cash could serve as the jurisdictional hook, any robbery would be a federal crime under the Hobbs Act.” Id. Nothing in Watson questioned the validity of the asset depletion theory for proving jurisdiction under the
B. The Record Provides a Factual Basis for Concluding Muratovic Took a Substantial Step Toward Committing Hobbs Act Robbery
The
A substantial step is “some overt act adapted to, approximating, and which in the ordinary and likely course of things will result in, the commission of the particular crime.” Villegas, 655 F.3d at 669 (quoting United States v. Gladish, 536 F.3d 646, 648 (7th Cir.2008)). It requires “something more than mere preparation, but less than the last act necessary before actual commission of the substantive crime.” E.g., Barnes, 230 F.3d at 315 (citing United States v. Rovetuso, 768 F.2d 809, 821 (7th Cir.1985)). This line between mere preparation and a substantial step is “inherently fact specific; conduct that would appear to be mere preparation in one case might qualify as a substantial step in another.” Villegas, 655 F.3d at 669 (quoting United States v. Sanchez, 615 F.3d 836, 844 (7th Cir.2010)). Generally, a defendant takes a substantial step when his actions “make[] it reasonably clear that had [the defendant] not been interrupted or made a mistake ... [he] would have completed the crime.” Sanchez, 615 F.3d at 844 (quoting Gladish, 536 F.3d at 648).
The record in this case provides plenty from which to find a factual basis
Muratovic argues his conduct amounted only to mere preparation. But other cases have found the substantial step requirement satisfied by facts nearly identical to those in this case. In Villegas, for example, the defendant hatched a plan to rob an armored truck when it stopped at a particular ATM. 655 F.3d at 665. To that end, he pre-arranged a meeting location, procured license plates for use on the getaway car, and cased the location planned for the robbery. Id. at 669. The defendant also discussed with his co-conspirators disguises the team would wear during the robbery and ensured a gun was stashed in the trunk of the car, confirming that the gun “work[ed] and everything.” Id. Officers arrested the defendant about one mile from the ATM on the day of the robbery. Id. at 666. Noting this conduct occurred after eight weeks of recorded conversations detailing the specifics of the plan, Villegas found the conduct “went beyond mere preparation and was strongly corroborative of the firmness of [the defendant‘s] criminal intent” to commit Hobbs Act robbery. Id. at 669 (internal punctuation and citation omitted); see also Barnes, 230 F.3d at 315. This conduct is nearly identical to Muratovic‘s: both defendants developed an extensive and detailed robbery plan over several months’ time, engaged in all preparations called for in the plan, and had arrived at the site of the planned robbery on the day of the planned robbery. In light of Villegas, the district court did not commit plain error in concluding that Muratovic engaged in a substantial step toward committing the planned robbery.
Muratovic challenges two of these key facts. First, he argues that nothing in record suggests he intended to actually commit the robbery on December 8. Muratovic‘s own words, uttered early on the morning of December 8 while the co-conspirators prepared for the robbery, reveal otherwise: “I am telling you that we will have him this evening. He is ours this evening, man, no matter what! Whether I had to kill him or not, he ... we will take everything from him, man. The man has money, man. The man drives a Bentley, man” (emphasis added). Furthermore, the PSR states that “[i]t was further part of the scheme that, on or about December 8, 2008, the defendants and Individual A waited for hours near the location of the truck for the occupants of the truck to leave” (emphasis added). The record therefore provides a factual basis to believe Muratovic and his co-conspirators planned to commit the robbery that day.
But even if the co-conspirators did not arrive at the Addison parking lot planning to rob the truck that day, crossing from mere preparation to a substantial step does not require police to wait until
Second, Muratovic argues that nothing in the record confirms that he ended his surveillance of the truck only after he thought the drivers of the truck had seen him. Again, the record provides a factual basis for this conclusion. Muratovic told police after his arrest that he believed the driver of a car that pulled into the Addison parking lot was the truck driver, who ultimately left without boarding the yellow truck because he saw the co-conspirators casing the truck. His statements on the recording corroborate this belief. “An old man,” Muratovic told his co-conspirators. “You know how he was looking at us, bro.” Thus, the record provides factual support that Muratovic left his surveillance post only because he believed his target had spotted him and, as a consequence, opted not to begin the drug run that day.
In short, what matters for the substantial step inquiry is whether the defendant has made it “reasonably clear” that without the interruption or mistake, he would have ultimately consummated the criminal plot. See Sanchez, 615 F.3d at 844 (quoting Gladish, 536 F.3d at 648). Given the record here—which showed a detailed and finalized robbery plan, extensive surveillance, and possession of all implements called for in the plan—and its factual similarity to Villegas, Muratovic‘s actions made it “reasonably clear” that had the truck in question departed for California while Muratovic and his co-conspirators were watching it on December 8, they would have been following closely behind, waiting for the truck to reach a rest stop.
C. The Court Need Not Reach the Question of Whether Conspiracy to Commit Hobbs Act Robbery Qualifies as a Crime of Violence Under 18 U.S.C. § 924(c)
In his final assault on his guilty plea, Muratovic challenges his conviction under
III. Conclusion
For these reasons, we AFFIRM Muratovic‘s conviction and guilty plea.