United States v. Ricardo Godfrey Pinder, Jr. , 437 F. App'x 816 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-15193 ELEVENTH CIRCUIT
Non-Argument Calendar AUGUST 12, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:08-cr-00421-CAP-AJB-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO GODFREY PINDER, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(August 12, 2011)
Before BARKETT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Ricardo Pinder, Jr., was convicted by a jury for conspiracy to commit a
Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a). He contends on appeal
that the district court erred in denying his motion for judgment of acquittal
pursuant to Federal Rule Criminal Procedure 29 because: (1) the government
presented no evidence that the conspiracy to commit a robbery of a private
individual affected interstate commerce; and (2) there was insufficient evidence of
an agreement or meeting of the minds by Pinder and his alleged co-conspirators to
carry out a robbery, as opposed to a burglary.
At trial, a law enforcement officer testified that he responded to a call
regarding a suspicious vehicle parked outside of a town-home, and observed
Pinder and three other individuals inside the vehicle. They were arrested for
loitering when the explanations they gave for their presence there did not appear to
be valid. A search of the vehicle discovered, among other things, bandanas
shaped like masks, a loaded assault-rifle in the trunk and a semi-automatic pistol
in the back seat, both of which were stolen. A subsequent search pursuant to a
warrant disclosed duct tape, electrical tape, a two-way radio, and zip ties in the
car. Interviews with Pinder and the others revealed that they purchased these
items as a part of a plan to steal money, cocaine, and marijuana from a drug dealer
who lived in the town-home. Two of the other co-conspirators testified against
Pinder at his trial as cooperating witnesses, both stating that the plan morphed
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from a plan to commit a robbery to a plan to commit a burglary by waiting until
the victim left the house, in the event he was armed.
Pinder was charged in a six-count indictment. In addition to the Hobbs Act
conspiracy, he was also convicted for using and carrying firearms in relation to the
conspiracy and possession of a stolen firearm. He was acquitted on three other
counts relating to the theft of firearms.
We review de novo the denial of a motion for judgment of acquittal, and
construe the evidence in the light most favorable to the verdict. United States v.
Thompson, 473 F.3d 1137, 1142 (11th Cir. 2006).
I.
Pinder first argues that the government failed to establish the necessary
impact on interstate commerce to support a conviction for a violation of the Hobbs
Act because the evidence only supports a robbery against an individual rather than
a business.
Upon review of the record, we find that the evidence was sufficient to
establish a conspiracy that had the potential to affect interstate commerce.
“Because the Hobbs Act, by its own terms, encompasses the inchoate offenses of
attempt and conspiracy, the interstate nexus required to prove a Hobbs Act
conspiracy may be established upon evidence that had the conspiratorial objective
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been accomplished, interstate commerce would have been affected.” United States
v. Orisnord, 483 F.3d 1169, 1177 (11th Cir. 2007). Thus, when a defendant is
charged with conspiracy to violate the Hobbs Act, “the interstate nexus may be
demonstrated by evidence of potential impact on interstate commerce or by
evidence of actual, de minimus impact.” United States v. Lee, 256 F.3d 1229,
1232 (11th Cir. 2001) (emphasis omitted) (internal quotation marks omitted). We
have also stated that a Hobbs Act conspiracy aimed at obstructing drug trafficking
establishes a sufficient interstate nexus, even where the intended victims and drugs
are fictitious. See United States v. Taylor, 480 F.3d 1025, 1027 (11th Cir. 2007).
Here, two of Pinder’s co-conspirators testified at his trial that they
collaborated with one another in an effort to steal money and drugs from a drug
dealer. A conspiracy that has an objective to steal drugs and money from a drug
dealer has a “potential” impact on interstate commerce, and therefore, there is a
sufficient interstate nexus to support Pinder’s conviction as to the Hobbs Act
conspiracy.
II.
Pinder next argues that the government failed to establish the existence of
an agreement to commit armed robbery, sufficient to support a conspiracy.
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To prove a Hobbs Act conspiracy, “the government must prove that: (1) two
or more persons agreed to commit a robbery or extortion encompassed within the
Hobbs Act; (2) the defendant knew of the conspiratorial goal; and (3) the
defendant voluntarily participated in helping to accomplish the goal.” United
States v. Diaz, 248 F.3d 1065, 1084 (11th Cir. 2001). Although the government
need not prove an overt act to sustain a conviction under the Hobbs Act, United
States v. Pistone, 177 F.3d 957, 960 (11th Cir. 1999) (per curiam), overt acts
committed by conspirators in furtherance of the conspiracy constitute
circumstantial evidence of the existence of an agreement. United States v. Arias-
Izquirdo, 449 F.3d 1168, 1182 (11th Cir. 2006).
Here, the jury heard evidence that Pinder and his co-conspirators initially
planned to enter the victim’s home, tie him up at gunpoint with zip ties, and then
ransack his home. The conspirators committed overt acts in furtherance of this
plan when they bought masks, gloves, zip ties, two-way radios, and duct tape;
retrieved firearms; and drove together to the victim’s home. These acts provide
sufficient circumstantial evidence to establish an agreement between the
conspirators to commit an armed robbery. Although the conspirators may have
subsequently agreed to commit burglary instead of robbery, the violation of §
1951(a) was complete upon the initial agreement to commit an armed robbery.
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III.
In reviewing the sufficiency of the evidence, “the issue is not whether a jury
reasonably could have acquitted but whether it reasonably could have found guilt
beyond a reasonable doubt.” Thompson, 473 F.3d at 1142. We find that the
evidence was sufficient to prove that the conspiracy to commit a Hobbs Act
robbery had the potential to affect interstate commerce. We also find that the
evidence was sufficient to demonstrate that the conspirators agreed to commit an
armed robbery because they collaborated with one another to obtain the necessary
equipment and firearms to conduct an armed robbery and discussed the details to
accomplish that objective with one another. Accordingly, Pinder’s convictions are
affirmed.
AFFIRMED.
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