United States v. Bradley , 367 F. App'x 873 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 24, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 06-8021
(D. Ct. No. 03-CR-102-01-WFD)
STEVEN PAUL BRADLEY, (D. Wyo.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, Chief Circuit Judge, MURPHY, Circuit Judge, and LUNGSTRUM,**
District Judge.
After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument.
A jury convicted Defendant Steven Bradley on all counts of a five-count
indictment. Mr. Bradley appeals the District Court’s denial of his motion for a judgment
*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
The Honorable John W. Lungstrum, Chief Judge, United States District Court for
the District of Kansas, sitting by designation.
of acquittal on three counts, as well as the court’s denial of his motion for a new trial. We
exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm Mr. Bradley’s conviction on
all counts.
I. Background
In January 2003, Mr. Bradley drove on his motorcycle to the Cowboy Dodge car
dealership in Cheyenne, Wyoming. He stopped near the dealership’s showroom and
threw an object, later identified as a World War II Japanese hand grenade, at a group of
sales associates. Law enforcement officers subsequently removed the grenade from the
dealership’s property and detonated it at a police firing range. Not long after the incident,
the police also arrested Mr. Bradley. During an interview with police, Mr. Bradley
explained that the dealership had refused to refund the $26,000 he paid them for a truck
with which he was dissatisfied. He also admitted that he threw the grenade at the
dealership, stating “special delivery,” in an effort to send the dealership a message.
Inside the grenade, Mr. Bradley had placed a note demanding that the dealership return
his $26,000.
The government subsequently charged Mr. Bradley with the following five
offenses: being a felon in possession of ammunition in violation of 18 U.S.C.
§§ 922(g)(1) & 924(a)(2) (count one); being a felon in possession of a firearm in violation
of 18 U.S.C. §§ 922(g)(1) & 924(a)(2) (count two); possessing a firearm not registered in
the National Firearms Registration and Transfer Record in violation of 26 U.S.C. §§
5861(d) & 5871 (count three); interfering with commerce by extortion in violation of the
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Hobbs Act, 18 U.S.C. § 1951(a) (count four); and possessing a destructive device during
and in relation to a violent crime in violation of 18 U.S.C. § 924(c)(1)(B)(ii) (count five).
Mr. Bradley went to trial on all five counts. At the close of the Government’s case-in-
chief, he moved for judgment of acquittal on counts two, four, and five, and the District
Court reserved ruling on the motion until the jury returned its verdict.
During the trial, Mr. Bradley’s defense counsel notified the court that he had
ethical concerns about participating in his client’s testimony. In response, the court gave
Mr. Bradley the choice of not testifying or testifying in narrative form without the
participation of his attorney. Mr. Bradley chose to testify in narrative form. The jury
found him guilty on all counts, and the District Court subsequently denied Mr. Bradley’s
motion for judgment of acquittal on counts two, four, and five, as well as his motion for a
new trial.
II. Discussion
Mr. Bradley challenges his conviction on three grounds. First, he argues that the
District Court erred in denying his motion for judgment of acquittal on count two (felon
in possession of a firearm) because the evidence at trial did not establish the grenade’s
nexus with interstate commerce. Second, he contends that the District Court erred in not
entering a judgment of acquittal on counts four and five because the evidence did not
show that he intended to interfere with commerce when he threw the grenade. Third, he
claims that the District Court erred in denying his motion for a new trial. According to
Mr. Bradley, he is entitled to a new trial because his Sixth Amendment right to effective
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assistance of counsel was violated when the District Court made him choose between not
testifying and testifying in narrative form without his defense counsel’s participation. For
the reasons specified below, we find Mr. Bradley’s arguments unavailing.
A. Motion for Judgment of Acquittal on Counts Two, Four, and Five
We review both the denial of a motion for judgment of acquittal and the
sufficiency of the evidence de novo. United States v. Wood, 207 F.3d 1222, 1228 (10th
Cir. 2000). “[V]iewing the evidence in the light most favorable to the government,” we
ask whether “any rational trier of fact could have found the defendant guilty of the crime
beyond a reasonable doubt.” Id. In reviewing the record, we consider only the evidence
entered at the close of the government’s case-in-chief because Mr. Bradley moved for
judgment of acquittal after the government rested. Id.
1. Grenade’s Nexus with Interstate Commerce
Mr. Bradley argues that the District Court should have entered judgment of
acquittal on his conviction for possessing a firearm (i.e., the grenade) 1 in violation of 18
U.S.C. § 922(g)(1) because the government did not present evidence satisfying § 922(g)’s
requirement that the firearm be possessed “in or affecting commerce.” Specifically, he
argues that the fact the grenade traveled across state lines does not satisfy the statute’s
interstate commerce requirement.2 In support of a stricter nexus requirement, Mr.
1
The definition of “firearm” under 18 U.S.C. § 921(a)(3) includes “any destructive
device,” which is further defined to include a grenade, id. § 921(a)(4)(A)(ii).
2
In his opening brief, Bradley also notes that the indictment charged him with
possession of a firearm that had traveled “in and affected interstate commerce,” while the
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Bradley cites United States v. Bass, 404 U.S. 336 (1971), in which the Supreme Court
indicated that possession of a firearm may require a stronger nexus with commerce than
receipt of a firearm, which requires showing only that the firearm received had previously
traveled in interstate commerce. Id. at 350–51. But the Supreme Court later clarified this
dicta from Bass and held that Congress did not intend to distinguish between possession
and receipt, but intended to “reach possessions broadly” by requiring only a “minimal
nexus” with interstate commerce. Scarborough v. United States, 431 U.S. 563, 575, 575
n.11 (1977).
Citing Scarborough, this Court has held that the government establishes the
required nexus with interstate commerce when it proves that the firearm previously
traveled across state lines. See United States v. Williams, 403 F.3d 1188, 1195 (10th Cir.
2005) (“Proof that the gun was manufactured in California and possessed by [the
statute criminalizes possession “in or affecting commerce,” 18 U.S.C. § 922(g) (emphasis
added). He claims that the difference in language resulted in a variance because the
government did not prove that the grenade traveled in and affected commerce. In other
words, he apparently claims that the District Court’s instructions and proof at trial for
possession in or affecting commerce impermissibly broadened the indictment. See
United States v. Sells, 477 F.3d 1226, 1237 (10th Cir. 2007) (explaining that such
broadening of an indictment is a “constructive amendment, which is reversible per se”).
Because he does not develop this argument, we do not think he properly raised it. See
United States v. Callwood, 66 F.3d 1110, 1115 n.6 (10th Cir. 1995) (“A litigant who
mentions a point in passing but fails to press it by supporting it with pertinent authority
. . . forfeits the point.” (quotation omitted)). But even if he had properly raised it, we
would reject it. The government may use the conjunctive in an indictment when the
statute uses the disjunctive because this “assures that defendants are not convicted on
information not considered by the grand jury.” United States v. Earls, 42 F.3d 1321,
1327 (10th Cir. 1994) (quotation omitted). Moreover, a district court does not
impermissibly broaden the indictment by instructing the jury in the disjunctive when the
indictment uses the conjunctive. Id.-5-
defendant] in Kansas is sufficient to establish the nexus with interstate commerce.”); see
also United States v. Gourley, 835 F.2d 249, 251 (10th Cir. 1987) (holding that evidence
that gun was manufactured in Spain and possessed in Oklahoma was “sufficient to show
that the firearm was ‘in or affecting commerce’”). During Mr. Bradley’s trial, the
Government presented evidence that the grenade was manufactured in Japan and
possessed by Mr. Bradley in Wyoming. This is sufficient evidence of the grenade’s
nexus with interstate commerce. The District Court did not therefore err in denying Mr.
Bradley’s motion for judgment of acquittal on this basis.
2. Nexus with Interstate Commerce under the Hobbs Act
The jury found Mr. Bradley guilty under the Hobbs Act, 18 U.S.C. § 1951, of
interfering with interstate commerce by attempted extortion.3 Mr. Bradley argues that the
District Court should have entered judgment of acquittal on this count (count four).
Specifically, he argues that a violation of 18 U.S.C. § 1951(a), based on attempted
extortion, requires a showing of specific intent to interfere with commerce. Furthermore,
he contends that his conviction on count five depends on his conviction on count four
because count five requires possession of a destructive device during and in relation to a
violent crime (i.e., the attempted extortion). A judgment of acquittal on count four would
3
The statute provides: “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. § 1951(a).
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therefore require a judgment of acquittal on count five as well.
Mr. Bradley’s argument is clearly foreclosed by our precedent. As we have
repeatedly noted, the government need only show a potential or de minimis effect on
interstate commerce to satisfy the interstate commerce element of the Hobbs Act. See
United States v. Curtis, 344 F.3d 1057, 1070 (10th Cir. 2003); United States v. Wiseman,
172 F.3d 1196, 1214 (10th Cir. 1999); United States v. Nguyen, 155 F.3d 1219, 1228
(10th Cir. 1998); United States v. Zeigler, 19 F.3d 486, 489 (10th Cir. 1994); United
States v. Lotspeich, 796 F.2d 1268, 1270 (10th Cir. 1986); United States v. Boston, 718
F.2d 1511, 1516–17 (10th Cir. 1983). Contrary to Mr. Bradley’s argument, the
Government did not have to prove he intended to interfere with commerce in order to
obtain a conviction based on attempted extortion. The required nexus with interstate
commerce is the same whether a defendant is charged with extortion or attempted
extortion. See Lotspeich, 796 F.2d at 1270 (noting that the government need only prove
that the defendant’s attempted extortion had a “limited effect on interstate commerce”);
Boston, 718 F.2d at 1516–17 (affirming jury instruction specifying that government must
“prove that the natural consequences of the acts or attempted acts alleged in the
indictment would be to delay, interrupt or affect ‘interstate commerce’”); see also United
States v. Farrell, 877 F.2d 870, 875 (11th Cir. 1989) (“Where attempted extortion or
conspiracy to extort are charged, the interstate nexus may be demonstrated by evidence of
potential impact on interstate commerce or by evidence of actual, de minimis impact.”
(citations omitted)).
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Here, the government presented sufficient evidence that Mr. Bradley’s attempted
extortion had a potential impact on interstate commerce. The evidence established that
the car dealership sells new and used cars and trucks manufactured outside Wyoming and
is therefore engaged in interstate commerce. In addition, the government introduced
evidence that the car dealership had to close down until the police could remove the
grenade. While the dealership was closed, it could have lost customers and made fewer
sales, thereby reducing the assets available for future purchases of cars and trucks in
interstate commerce. See Nguyen, 155 F.3d at 1228 (“[A] depletion of assets potentially
affecting interstate commerce constitutes a sufficient nexus to interstate commerce under
the Hobbs Act.”). Similarly, the natural consequences of Mr. Bradley’s attempted
extortion had the potential to affect commerce; had he obtained the $26,000, the
dealership’s total assets would be depleted, reducing the amount that the dealership could
spend in purchasing cars from out-of-state manufacturers. See Curtis, 344 F.3d at 1071
(citing United States v. Brown, 959 F.2d 63, 68 (6th Cir. 1992), in which the court held
that the nexus between an attempted robbery and interstate commerce was satisfied
because, if the defendant had succeeded, the depletion of the businesses’ assets could
have affected interstate commerce); Farrell, 877 F.2d at 875 (holding that the evidence
established a nexus with interstate commerce because “had the [defendants’] extortion
scheme succeeded, the likely natural effect was that interstate commerce would have been
affected”); see also United States v. Curcio, 759 F.2d 237, 242 (2d Cir. 1985) (holding
that, when a defendant is charged with attempted extortion under 18 U.S.C. § 1951, the
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government need only show that an effect on interstate commerce is possible). Because
the government presented sufficient evidence that Mr. Bradley’s attempted extortion had
the potential to affect interstate commerce, the District Court did not err in denying his
motion for judgment of acquittal on this basis.
B. Motion for a New Trial Based on Ineffective Assistance of Counsel
Lastly, Mr. Bradley contends that the District Court erred in denying his motion
for a new trial based on his claim of ineffective assistance of counsel. We decline to
address the merits of this claim and instead dismiss it. As we have previously held,
claims based on ineffective assistance of counsel “should be brought on collateral review,
in the first petition filed under 28 U.S.C. § 2255,” so that a factual record enabling
effective appellate review may be developed in the district court. United States v.
Galloway, 56 F.3d 1239, 1242 (10th Cir. 1995) (en banc). As the Supreme Court has
explained, “[w]hen an ineffective-assistance claim is brought on direct appeal, appellate
counsel and the court must proceed on a trial record not developed precisely for the object
of litigating or preserving the claim and thus often incomplete and or inadequate for this
purpose.” Massaro v. United States, 538 U.S. 500, 504–05 (2003). For this reason, we
dismiss ineffective-assistance claims brought on direct appeal except in rare instances not
present here, such as when claims are “fully developed in the record.” Galloway, 56 F.3d
at 1242. We therefore dismiss Mr. Bradley’s ineffective-assistance claim so that he may
raise it in collateral proceedings under 18 U.S.C. § 2255.
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III. Conclusion
For the foregoing reasons, we AFFIRM Mr. Bradley’s conviction on all counts.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Chief Circuit Judge
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