United States v. Hopper ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4603
GERALD DAMONE HOPPER,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4705
GERALD DAMONE HOPPER,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4834
GERALD DAMONE HOPPER,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Thomas A. Wiseman, Jr., Senior District Judge,
sitting by designation.
(CR-95-119)
Submitted: November 26, 1997
Decided: December 31, 1997
Before NIEMEYER, HAMILTON, and WILLIAMS,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Kenneth P. Andresen, Charlotte, North Carolina, for Appellant. Mark
T. Calloway, United States Attorney, Robert J. Conrad, Jr., Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Gerald Damone Hopper appeals his conviction for conspiracy to
obstruct, delay, and affect commerce by robbery (18 U.S.C.A.
§ 1951(a) (West Supp. 1997)); obstruction or delaying interstate com-
merce by robbery (18 U.S.C.A. § 1951(a) (West Supp. 1997)); pos-
session of a firearm during and in relation to a crime of violence (18
U.S.C.A. § 924(c) (West Supp. 1997)); and possession of a firearm by
a convicted felon (18 U.S.C.A. § 922(d) (West 1994 & Supp. 1997)).
We affirm.
In May 1995, Hopper and an accomplice robbed a Hooters restau-
rant in Charlotte, North Carolina, at gunpoint. They stole $20,000 dol-
lars from the store safe, money from the manager's pockets, and
money from the cash drawer. After the robbery, the two men drove
into a driver's license checkpoint. Hopper could not produce a license
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and sped through the checkpoint. Both men jumped from the vehicle
and escaped.
The police traced the license plate of the vehicle and found the
owner, who informed the police that he recently sold the vehicle to
Hopper. The owner also told the police that prior to their arrival, Hop-
per called him to say that the van was stolen. The police traced the
call and obtained the address of where the phone call originated. The
police found Hopper's accomplice at that address and arrested him.
The owner of the vehicle also testified that Hopper admitted his
involvement in the robbery. Hopper was arrested shortly thereafter.
At trial, the accomplice pleaded guilty, and the case continued to trial
against Hopper.
On appeal, Hopper asserts that the evidence at trial was insufficient
to support a conviction under the Hobbs Act because it failed to show
that the robbery "substantially affected" interstate commerce. Hopper
relies on United States v. Lopez, 514 U.S. 549 (1995), to support his
contention.
In Lopez, the Supreme Court invalidated 18 U.S.C.A.
§ 922(q)(1)(A) (West Supp. 1995), a provision in the Gun-Free
School Zones Act of 1990, making possession of a firearm within
1000 feet of a school a federal offense. See Lopez, 514 U.S. at 551.
The Court struck down the conviction in part because the statute
"contains no jurisdictional element which would ensure, through case-
by-case inquiry, that the firearm possession in question affects inter-
state commerce." Id. at 561. The Court also clarified its Commerce
Clause jurisprudence and identified three categories of activity Con-
gress may regulate under the Commerce Clause: (1) the use of chan-
nels of interstate commerce; (2) the instrumentalities of interstate
commerce; and (3) those activities bearing a substantial relation to
interstate commerce. Id. at 559; see United States v. Robertson, 514
U.S. 669, 671 (1995) (holding that "substantially affects" test applied
in Lopez was developed "to define the extent of Congress' power over
purely intrastate commercial activities which nonetheless have sub-
stantial interstate effects").
Unlike the statute at issue in Lopez, there is a jurisdictional element
in the Hobbs Act. The Hobbs Act provides for the punishment of any-
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one who "in any way or degree obstructs, delays, or affects commerce
or the movement of any article or commodity in commerce, by rob-
bery or extortion." 18 U.S.C.A. § 1951(a) (West Supp. 1997).
Because there is a jurisdictional element present in the statute, the
"substantially affects" test is not applicable, and the government need
only show a de minimis effect on interstate commerce. See United
States v. Atcheson, 94 F.3d 1237, 1241-42 (9th Cir. 1996), cert.
denied, ___ U.S. ___, 65 U.S.L.W. 3586 (U.S. Feb. 24, 1997) (No.
96-7644); see also United States v. Farrish, 122 F.3d 146, 148-49 (2d
Cir. 1997) (holding that "to satisfy the jurisdictional element of the
Hobbs Act, the Government need only show a ``minimal' effect on
interstate commerce"); United States v. Stillo, 57 F.3d 553, 558 (7th
Cir. 1995) (holding the de minimis test consistent with Lopez); United
States v. Spanglo, 546 F.2d 1117, 1119 (4th Cir. 1976) ("All that is
required to bring an extortion within statute is proof of a reasonably
probable effect on commerce, however minimal, as a result of the
extortion.").
To sustain a conviction, the evidence viewed in the light most
favorable to the Government must be sufficient for a rational jury to
find the essential elements of the crime beyond a reasonable doubt.
See Glasser v. United States, 315 U.S. 60, 80 (1942); United States
v. Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993). The elements of a
Hobbs Act violation are: (1) a robbery, act of extortion, or attempt or
conspiracy to rob or extort; and (2) an interference with interstate
commerce. See Robinson, 119 F.3d at 1212 (citing Stirone v. United
States, 361 U.S. 212, 218 (1960)).
The evidence at trial showed that Hopper robbed at gunpoint the
Hooters restaurant of $20,000. The Government also showed that the
$20,000 represented six percent of the store's annual profit. Testi-
mony further established that the restaurant operated within interstate
commerce. Thus, the evidence was sufficient to sustain a Hobbs Act
charge.
Hopper next asserts that the district court erred in failing to instruct
the jury that the robbery had to "substantially affect" interstate com-
merce. As previously discussed, the "substantially affect" test is not
applicable to Hobbs Act charges. Therefore, the district court did not
err in failing to instruct the jury as to "substantially affect."
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Hopper next asserts that the evidence was insufficient to sustain a
conspiracy charge. To prove conspiracy, the government must show
an agreement between two or more persons, an intent to achieve a
certain objective through unlawful means, and the defendant's willing
participation. See United States v. Burgos, 94 F.3d 849 (4th Cir. 1996)
(in banc), cert. denied, ___ U.S. #6D 6D6D#, 65 U.S.L.W. 3586 (U.S. Feb.
24, 1997) (No. 96-6868).
Viewing the evidence in the light most favorable to the Govern-
ment, we find it sufficient to convict Hopper of conspiring to rob the
Hooters restaurant. The evidence clearly showed that Hopper had a
partner in the robbery. Further, testimony showed that Hopper admit-
ted to a friend that he had a partner in the robbery. Thus, a rational
trier of fact could find the essential elements of conspiracy beyond a
reasonable doubt.
Finally, Hopper asserts that the prosecutor violated his right to a
fair trial when, during opening statements, he forecast to the jury the
evidence that would be presented at trial and included evidence con-
cerning the accomplice, who pleaded guilty and was not tried.
Because Hopper did not object at trial, this Court reviews for plain
error. See United States v. Olano, 507 U.S. 725, 732 (1993).
Hopper fails to establish that the prosecutor's remarks affected his
substantial rights. At the time the prosecutor made the statements con-
cerning evidence about the accomplice, the prosecutor did not know
that he would later plead guilty mid-trial. Further, the district court
instructed the jury that the lawyers' statements were not evidence and
cautioned the jury to use their own recollection of the evidence. Thus,
the remarks were isolated and not intentional, see United States v.
Harrison, 716 F.2d 1050, 1052 (4th Cir. 1983), and this claim is with-
out merit.
Accordingly, we affirm Hopper's convictions. We deny Hopper's
motions to file pro se supplemental briefs. We also deny Hopper's
motion for "Judicial Intervention And/Or Reappointment Of Appel-
lant Counsel." We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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