United States v. Hinton ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6787
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HENDERSON L. HINTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. Terrence W.
Boyle, District Judge. (2:06-cr-00015-BO-1)
Argued: December 4, 2009 Decided: February 24, 2010
Before WILKINSON and KING, Circuit Judges, and Henry E. HUDSON,
United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Jeanette K. Doran, NORTH CAROLINA INSTITUTE OF
CONSTITUTIONAL LAW, Raleigh, North Carolina, for Appellant.
Banumathi Rangarajan, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee. ON BRIEF: George E. B.
Holding, United States Attorney, Anne M. Hayes, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a trial by jury, Henderson L. Hinton was found
guilty of two counts of interfering with commerce by robbery, 18
U.S.C. § 1951; one count of armed bank robbery, 18 U.S.C. §
2113(a) and (d), 18 U.S.C. § 2; and three counts of using a
firearm during and in relation to a crime of violence, 18 U.S.C.
§ 924(c)(1). The defendant appeals his convictions on multiple
grounds, including sufficiency of the evidence and an alleged
fatal variance in proof. We affirm the judgment.
I.
Taken in the light most favorable to the government, Evans
v. United States, 504 U.S. 255, 257 (1992), the evidence
presented at trial established the following. On October 16,
2006, a person armed with a revolver entered the Nationwide
Insurance Agency in Ahoskie, North Carolina. After covering his
face with a mask, the robber cocked the revolver in employee
Marian Alston’s face and whispered, “give me all your money.”
Alston complied by taking the robber to an adjacent office and
surrendering approximately $3,000. The robber then fled the
scene. According to Alston, the robber wore white tennis shoes,
jeans, and a blue shirt with a white stripe and the word
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“Nautica” across the chest. A few days later, Alston identified
Hinton from a police photo array as the person who robbed her.
Three days after the Nationwide Insurance robbery, an
individual wearing a fishing hat and a blue and white striped
shirt entered the offices of Bennett Insurance Services in Rocky
Mount, North Carolina and approached employee Donna Kermon. The
person pulled a mask over his face, brandished a revolver at
Kermon, and demanded money. Observing the robbery in progress,
Richard Bennett, the owner of Bennett Insurance Services,
emerged from his office and confronted the robber. The
perpetrator then directed the revolver at Bennett and demanded
money. Bennett, who had just “exchanged” money, produced a ten
dollar bill from his pocket and handed it to the robber. After
a brief struggle with Bennett over the gun, the perpetrator fled
the premises. Bennett pursued the robber and observed him in
the passenger seat of an older model dark-colored Acura.
Bennett memorized a portion of the license plate number and
later provided it to the police. Several days after the
robbery, as well as at trial, Kermon identified Hinton as the
robber. At the time of the robbery, Bennett Insurance Services
was regularly engaged in interstate commerce.
Several hours after the Bennett Insurance robbery, a man
entered the Southern Bank branch in Scotland Neck, North
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Carolina and approached bank teller Marshell Roberson. The
robber presented a firearm and asked for money. Roberson
reached into her cash drawer and handed the robber approximately
$1,000. After stuffing the currency in his pants pocket, he
left the bank. Roberson described the robber as wearing a tan
fisherman’s hat, a blue and white striped shirt, and a black
piece of cloth over his face. No bank employee specifically
identified Hinton as the perpetrator.
Shortly thereafter, law enforcement officers responding to
the Southern Bank robbery observed a black Acura traveling away
from Scotland Neck. Aware that a similar vehicle had been
involved in a robbery earlier that day, the officers attempted
to stop the Acura. After a six mile high-speed pursuit, the
vehicle eventually crashed into a ditch. Hinton was observed
fleeing from the passenger side. A brief foot chase ensued,
during which Hinton discarded a revolver. He was eventually
apprehended after being shot by a pursuing officer. A search of
the Acura revealed a white and blue striped shirt, a fisherman’s
cap, and a black nylon cap. *
*
In his testimony, FBI Agent Michael Sutton identified one
of the items recovered from the Acura as a black nylon cap.
Despite the similar description, it is unclear whether this item
was the black piece of cloth covering the Southern Bank robber’s
face, as described by witness Marshell Roberson.
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Bennett was able to identify the Acura from which the
defendant fled, the clothing found inside the vehicle, and the
revolver recovered along Hinton’s path of flight, as those
involved in the Bennett Insurance robbery. A large amount of
U.S. currency was also discovered in Hinton’s pants pocket.
A grand jury indicted Hinton on two counts of interfering
with commerce by robbery, 18 U.S.C. § 1951 (Counts One and
Three); one count of armed bank robbery, 18 U.S.C. § 2113(a) and
(d), and aiding and abetting the same, 18 U.S.C. § 2 (Count
Five); and three counts of using a firearm during and in
relation to a crime of violence, 18 U.S.C. § 924(c)(1) (Counts
Two, Four, and Six). Count Three of the Indictment specifically
alleged that the defendant “did unlawfully take and obtain
property consisting of approximately $10.00 in United States
currency, the property of Bennett Insurance Services, Inc.”
Count Four of the Indictment referred to the predicate crime of
violence as a “robbery affecting interstate commerce in
violation of Title 18, United States Code, Section 1951,”
involving the Bennett Insurance agency.
All counts were tried together before a jury beginning on
December 10, 2007. The government’s evidence in both the
Nationwide and Bennett robberies consisted principally of
eyewitness identification of Hinton, corroborating physical
5
evidence, such as clothing, weapon and vehicle, coupled with the
circumstances of his arrest. In the Southern Bank robbery, the
government’s evidence was purely circumstantial and focused
mainly on the events immediately preceding the defendant’s
arrest, along with the clothing, revolver, Acura, time-frame,
and proximity to the bank. On all counts, the defense
challenged the adequacy of proof of identity, the lack of
forensic evidence and bank security camera photographs. The
defense also argued that no witness was able to connect the
clothing seized from the vehicle with the defendant. At the
close of the evidence, the court denied the defendant’s motion
for judgment of acquittal. The jury found the defendant guilty
on all counts. This appeal followed.
With respect to the Bennett Insurance robbery (Count
Three), a critical issue in dispute was the ownership of the ten
dollars taken from Mr. Bennett. The Indictment alleged, and the
prosecution argued, that it was the property of Bennett
Insurance Services. The defense maintained that the evidence
was more consistent with the money being owned personally by
Bennett. During deliberations, the jury asked for clarification
on this point. Specifically, the jury asked, “[D]oes the ten
dollars represent interstate commerce since it came from an
individual?” The district court instructed the jury that
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the government has alleged that . . . the
approximately ten dollars in United States currency,
was the property of Bennett Insurance Services, Inc.
Whether they have proved that is your business. Not
mine. You heard the evidence, and so you have to
decide beyond a reasonable doubt whether the
government has proved that.
The district court summarized by stating, “[I]f they have proved
that beyond a reasonable doubt, then it would be your duty to
find the defendant guilty. If they have failed to prove that
beyond a reasonable doubt, then it would be your duty to find
the defendant not guilty. Your verdict has to be unanimous.”
The defense offered no objection to any of the jury instructions
given by the court.
Hinton raises three issues on appeal. First, Hinton
maintains the government’s identification evidence was legally
insufficient to support his convictions on all counts. Second,
Hinton argues that there was a fatal variance between the
property described in Count Three of the Indictment and the
evidence presented at trial. Third, Hinton contends the
government’s evidence was legally insufficient to support his
convictions on both Counts Three and Four because the government
failed to produce evidence that the property taken in the
Bennett robbery effected interstate commerce. We address each
contention in turn.
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II.
In his first assignment of error, Hinton asserts that the
government’s identification evidence is insufficient to sustain
his convictions on all counts. In support of this argument,
Hinton emphasizes several purported deficiencies in the
government’s evidence, namely, the lack of forensic evidence,
the government’s failure to show that Hinton wore the clothing
attributed to the robber, and the uncertainty of witness
identification testimony.
When a defendant asserts a claim of insufficient evidence,
the “verdict of a jury must be sustained if there is substantial
evidence, taking the view most favorable to the Government, to
support it.” Glasser v. United States, 315 U.S. 60, 80 (1942).
Substantial evidence is “evidence that a reasonable finder of
fact could accept as adequate and sufficient to support a
conclusion of a defendant’s guilt beyond a reasonable doubt.”
United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005)
(quoting United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1976) (en banc)). “Reversal for insufficient evidence is
reserved for the rare case ‘where the prosecution’s failure is
clear.’” United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir.
1997) (citing Burks v. United States, 437 U.S. 1, 17 (1978)).
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In weighing identification evidence, “it is well
established at common law, with exceptions not here pertinent,
that ordinarily the testimony of one eyewitness is sufficient
for the purpose of identification of the perpetrator of a
crime.” United States v. Levi, 405 F.2d 380, 382 (4th Cir.
1968). When reviewing a sufficiency of evidence claim, this
Court “must consider circumstantial as well as direct evidence,
and allow the government the benefit of all reasonable
inferences from the facts proven . . . .” United States v.
Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).
With these standards in mind, we have reviewed the record
and conclude that the government’s identification evidence was
sufficient to support Hinton’s conviction. The issue of
criminal agency was one of fact for the jury to resolve. With
respect to the Nationwide and Bennett robberies, the jury heard
testimony from Alston and Kermon identifying Hinton as the
robber. Moreover, the money found on Hinton and the clothing
discovered in the Acura, which was consistent with that worn in
the Bennett and Southern Bank robberies, further supports the
jury’s identification of Hinton as the perpetrator of all three
robberies. Obviously, the jury chose to credit this testimony.
For these reasons, the collective evidence is more than
sufficient to implicate Hinton in all three robberies.
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Next, the defendant challenges his conviction based on a
fatal variance of proof. Hinton claims that a fatal variance
existed between the allegations in Count Three of the Indictment
and the evidence produced at trial to support this charge. In
particular, Hinton argues that the government failed to present
evidence that the property taken in the robbery alleged in Count
Three was actually the property of Bennett Insurance Services,
as distinguished from the individual Richard Bennett. As a
result, Hinton maintains that he was surprised by what he
characterizes as an unexpected change in the prosecution’s
theory of proof, and consequently, was unable to prepare a
proper defense on Counts Three and Four. He urges this Court to
set aside his convictions on these counts.
“When the government, through its presentation of evidence
and/or its argument, or the district court, through its
instructions to the jury, or both, broadens the bases for
conviction beyond those charged in the indictment, a
constructive amendment--sometimes referred to as a fatal
variance--occurs.” United States v. Randall, 171 F.3d 195, 203
(4th Cir. 1999). “A constructive amendment is a fatal variance
because the indictment is altered ‘to change the elements of the
offense charged, such that the defendant is actually convicted
of a crime other than that charged in the indictment.’” Id.
10
(quoting United States v. Schnabel, 939 F.2d 197, 203 (4th Cir.
1991)). “Thus, a constructive amendment violates the Fifth
Amendment right to be indicted by a grand jury, is error per se,
and must be corrected on appeal even when the defendant did not
preserve the issue by objection.” Id.“However, not all differences between an indictment and the
proof offered at trial, rise to the ‘fatal’ level of a
constructive amendment.” Id. “As long as the proof at trial
does not add anything new or constitute a broadening of the
charges, then minor discrepancies between the Government’s
charges and the facts proved at trial generally are
permissible.” United States v. Fletcher, 74 F.3d 49, 53 (4th
Cir. 1996).
For clarity’s sake, we must point out that where the
government’s presentation at trial does not broaden
the legal bases for conviction by allowing the jury to
consider a different or less specific offense, but
instead fails to establish as fact an essential
element of the indicted offense, the proper challenge
on appeal is to the sufficiency of the evidence.
United States v. Floresca, 38 F.3d 706, 710 n.10 (4th Cir.
1994).
In light of the evidence presented at trial and the court’s
instruction to the jury, Hinton’s fatal variance argument is
without merit. First, Hinton’s argument misinterprets the
government’s evidence. Hinton claims that the government
11
attempted to prove the currency taken from Richard Bennett was
his own personal money and not that of Bennett Insurance. To
the contrary, he described the ten dollars taken in the robbery
as “exchanged” currency. Although Bennett never explained the
meaning of “exchanged,” the jury, as trier of fact, could, and
did, logically conclude that the money was a business asset.
There is no indication from the evidence that the prosecution
theory deviated from the allegation in the Indictment that the
currency taken in the robbery was anything other than the
property of Bennett Insurance. Consequently, the defendant’s
argument is more appropriately viewed as a failure to prove an
element rather than a constructive amendment to the Indictment.
See Floresca, 38 F.3d at 710 n.10.
Hinton’s related argument that he was not given adequate
notice of the government’s revised theory of money ownership,
and was unable to prepare a defense which stressed the
connection between the money and interstate commerce, is equally
unpersuasive. Given the trial judge’s response to the jury’s
specific question on this issue, it is difficult to fathom
counsel’s confusion on this point. The nature of the charge
alone provided ample notification to Hinton that a proper
defense would focus on the connection between the money,
regardless of the owner, and interstate commerce. Therefore,
12
Hinton cannot claim his defense was prejudiced, and his second
ground for appeal fails.
Finally, Hinton contends that the evidence on Counts Three
and Four, which charged violations of the Hobbs Act (robbery of
Bennett Insurance Services) and use of a firearm in the
commission of a crime of violence, respectively, failed to prove
the essential element of “effect on interstate commerce.” 18
U.S.C. § 1951. Hinton maintains that because a conviction on
Count Three (the Bennett robbery) is a necessary prerequisite to
a conviction on Count Four (the firearm charge) both must be set
aside. This Court disagrees with both the defendant’s logic and
analysis of the evidence.
Title 18 U.S.C. § 1951, commonly known as the Hobbs Act,
prohibits robbery or extortion that “in any way or degree
obstructs, delays, or affects commerce or the movement of any
article or commodity in commerce.” 18 U.S.C. § 1951(a). “A
Hobbs Act violation requires proof of two elements: (1) the
underlying robbery or extortion crime, and (2) an effect on
interstate commerce.” United States v. Williams, 342 F.3d 350,
353 (4th Cir. 2003). Congress has made clear that it intended
to exercise the full extent of its constitutional power “to
punish interference with interstate commerce by extortion,
robbery, or physical violence.” Id. at 354. The Hobbs Act
“outlaws such interference ‘in any way or degree.’” Stirone v.
13
United States, 361 U.S. 212, 215 (1960) (citing 18 U.S.C. §
1951(a)). Therefore, the Fourth Circuit has “found the Hobbs
Act to apply whenever the instant offense has at least a
‘minimal’ effect on interstate commerce.” Williams, 342 F.3d at354 (citing United States v. Spagnolo, 546 F.2d 1117, 1119 (4th
Cir. 1976)).
To qualify as having a “minimal effect” on interstate
commerce, the Hobbs Act “does not require proof that a defendant
intended to affect commerce or that the effect on commerce was
certain; it is enough that such an effect was the natural,
probable consequence of the defendant’s actions.” Id. Commerce
has been considered “sufficiently affected under the Hobbs Act
where a robbery depletes the assets of a business that is
engaged in interstate commerce.” Id. This “jurisdictional
predicate may be satisfied though the impact upon commerce is
small, and it may be shown by proof of probabilities without
evidence that any particular commercial movements were
affected.” United States v. Brantley, 777 F.2d 159, 162 (4th
Cir. 1985).
Based on the deference we must give to the government’s
evidence and the “minimal effect” on interstate commerce
required, we find the evidence more than sufficient to support
the jury’s verdict on Count Three. The evidence demonstrated
that Bennett Insurance Services transacted business with
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customers in a number of states. Mr. Bennett, the owner,
testified that the currency removed from his pocket and taken in
the robbery had just been “exchanged.” In the context of the
evidence, it was logical to conclude, as the jury did, that the
exchange at issue involved business assets. Proof of the
required interstate nexus was more than adequate to satisfy the
jurisdictional predicate. We find that “a reasonable finder of
fact could accept [this evidence] as adequate and sufficient to
support a conclusion of a defendant’s guilt beyond a reasonable
doubt.” Alerre, 430 F.3d at 693.
Accordingly, we find “there is substantial evidence, taking
the view most favorable to the Government,” to support Hinton’s
conviction on Count Three. Glasser, 315 U.S. at 80. While we
do not believe that Hinton’s conviction on Count Four (the
firearm charge) is necessarily linked to proof of Count Three,
the evidence was sufficient to support a conviction on that
count as well.
Based on the aforementioned reasons, we affirm Hinton’s
convictions and sentence. Furthermore, we deny Hinton’s motion
for leave to file a pro se supplemental brief challenging his
sentence on various other grounds.
AFFIRMED
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