United States v. Blount ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4128
FRED BLOUNT, III,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
J. Calvitt Clarke, Jr., Senior District Judge.
(CR-95-138)
Argued: March 3, 1997
Decided: April 1, 1997
Before WILKINSON, Chief Judge, HALL, Circuit Judge, and
BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Allan Donald Zaleski, WEISBERG & ZALESKI, P.C.,
Norfolk, Virginia, for Appellant. Ronald Glen Reel, Special
Assistant
United States Attorney, Norfolk, Virginia, for Appellee. ON BRIEF:
Helen F. Fahey, United States Attorney, Norfolk, Virginia, for
Appel-
lee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Fred Blount appeals his convictions, following a jury trial, of
obstructing, delaying, and affecting commerce by aiding and
abetting
a robbery; conspiracy to obstruct, delay, and affect commerce by
rob-
bery; use of a firearm during and in relation to a crime of
violence;
and aiding and abetting the use of a firearm during a crime of vio-
lence. Finding no error, we affirm.
I.
On the evening of March 24, 1994, four men -- Anthony
Hathaway, Charles Bond, Tony Saunders, and Fred Blount -- trav-
eled in a car from North Carolina to Portsmouth, Virginia. Hathaway
heard the others discuss robbing some drug dealers in Suffolk, Vir-
ginia. This plan was aborted; instead, the group wound up at a
Pizza
Hut in Portsmouth. Hathaway went inside first. As a pizza delivery-
man approached the restaurant, Bond put a gun to his head and
forced
him inside, followed by Blount and Saunders. Blount was holding a
semi-automatic pistol and Saunders had a sawed-off shotgun. The
three armed men went behind the counter, pointing their guns at the
employees. Bond demanded money. The manager was unable to open
the safe, but he gave the robbers the money from the cash drawer
(approximately $65). Hathaway, who had been standing at the door,
fled when someone approached in the parking lot.
Someone yelled, "Police." An off-duty officer, Rolando Gonzalez,
had happened upon the scene. He saw the men pointing guns inside.
Saunders fired at Gonzalez; the shot made a hole in a window but
did
not hit its target. Blount then pointed his pistol at Gonzalez, but
Gon-
zalez fired first. Blount was wounded. He dropped his gun and fled.
The loaded pistol was recovered at the scene. The robbery and gun-
play forced the Pizza Hut to close for the evening and to repair
its
damaged window.
2
All four perpetrators were soon apprehended. Blount gave a state-
ment the following day, in which he admitted riding with the others
to the Pizza Hut. He stated that Bond had instructed the others to
fol-
low his lead. He admitted directing the employees on where to go
during the robbery. In a statement taken a week later, Blount
admitted
holding the gun in his hand inside the Pizza Hut and that the
others
had guns as well. Finally, he stated that once they were in the
Pizza
Hut, all four knew it was a robbery.
Charges were brought in state court. The other three prosecutions
ended with convictions. Blount's did not. The charges against him
were dismissed for lack of a speedy trial.
The United States then brought a four-count indictment against
Blount only. The district court denied Blount's motion to dismiss
cer-
tain counts as duplicitous or to force an election between the
counts.
At trial, with Hathaway's testimony and Blount's own confessions as
the prime evidence, Blount was convicted on all counts. He received
a five-year sentence for conspiracy, five concurrent years for
robbery,
ten consecutive years for his first 18 U.S.C. § 924(c) conviction,
and
twenty consecutive years for his second § 924(c) conviction.
Blount appeals.
II.
As he did below, Blount argues that he committed only two crimes,
and so should not have four convictions. His arguments have no
legal
merit. The four counts are "separate" for double jeopardy purposes.
First of all, it is blackletter law that convictions for conspiracy
to
commit a crime and for the substantive commission of the crime do
not constitute double jeopardy. Pinkerton v. United States, 328
U.S.
640, 643 (1946).
Counts three and four are both § 924(c) convictions, so they have
the identical legal elements. However, the factual elements are
entirely different. Count three charged Blount himself with
carrying
a semiautomatic pistol during the robbery. Count four charged
Blount
3
with aiding and abetting the carrying of Bond's pistol and
Saunders'
sawed-off shotgun. If a defendant commits the same crime twice, he
can be convicted twice.
III.
Blount next challenges the sufficiency of the evidence on his con-
spiracy conviction. We view the evidence in the light most
favorable
to the government, and we must affirm the conviction if it is sup-
ported by substantial evidence. Glasser v. United States, 315 U.S.
60,
80 (1942); United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996)
(en banc), cert. denied, ___ S.Ct. ___ (1997). The evidence was
more
than adequate. Besides Blount's own admission that everyone knew
what was going to happen, the activity during the robbery was
clearly
concerted. It is not very likely that all four men spontaneously
devel-
oped the same idea at the same time, and that through sheer happen-
stance they coordinated their actions toward the same end. It may
well
be that the men originally planned some other robbery, and that the
Pizza Hut robbery was an impulsive change of plan; nevertheless, a
conspiracy need not have a long duration or be the product of
exces-
sive forethought. This jury could rationally find, based on
substantial
evidence before it, that these men agreed to do what they did.
IV.
Next, Blount argues that there was no evidence that he intended to
obstruct interstate commerce by robbing the Pizza Hut. Because a
commerce element merely provides a basis for federal jurisdiction,
rather than separates innocent from criminal conduct, it ordinarily
has
no mens rea component. See United States v. Yermian , 468 U.S. 63,
68-70 (1984); United States v. Feola, 420 U.S. 671, 676-677 n.9
(1975). Indeed, this court has recently held, en banc and
unanimously
on the point, that the "commerce" element of 18 U.S.C. § 922(g) is
jurisdictional only and has no mens rea component. United States v.
Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en banc), cert. denied,
116
S.Ct. 797 (1996); id. at 618-619 (Phillips, J., concurring and
dissent-
ing). We see nothing in the language of the robbery statute1 to
counsel
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1 18 U.S.C. § 1951.
4
a different result here.2
V.
Finally, Blount posits that the federal prosecution should not be
permitted because it would not likely have been brought but for the
botched state prosecution. The United States and Virginia are
separate
sovereigns, and a single act can transgress the laws of both.
Because
each sovereign's authority to prosecute is inherent and does not
derive
from power of the other, each may proceed as it sees fit, and
succes-
sive prosecutions pose no double jeopardy problem. Heath v.
Alabama, 474 U.S. 82, 88-89 (1985) (collecting cases).
Blount also refers to the Department of Justice's Petite policy
(i.e.
the United States will not ordinarily prosecute persons acquitted
on
analogous charges in state court, absent a compelling federal
interest).
This reference gets him nowhere. He was not acquitted on the merits
in state court, so the policy does not even apply by its own terms.
Moreover, Petite is an internal executive policy, not a law, and it
con-
fers no rights on a criminal defendant. United States v. Musgrove,
581
F.2d 406 (4th Cir. 1978).
The judgment of the district court is affirmed.
AFFIRMED
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2 It bears noting that the government offered ample proof of the
juris-
dictional commerce element. First of all, Pizza Hut is a business.
An
employee of Pepsico Food Systems, which owns the Pizza Hut, Taco
Bell, and KFC restaurant chains, testified that nearly all of the
food items
served at the Portsmouth outlet had traveled in interstate
commerce. See
United States v. Ramey, 24 F.3d 602 (4th Cir. 1994) (a private
resi-
dence's receipt of electricity from an interstate power grid is an
activity
affecting commerce), cert. denied, 115 S.Ct. 1838 (1995).
5