United States v. Thomas Lee Farmer

_____________
No. 95-3126NI
_____________
United States of America, *
*
Appellee, *
* On Appeal from the United
v. * States District Court
* for the Northern District
* of Iowa.
Thomas Lee Farmer, *
*
Appellant. *
___________
Submitted: January 8, 1996
Filed: January 18, 1996
___________
Before RICHARD S. ARNOLD, Chief Judge, BOWMAN, Circuit Judge, and
JONES,* District Judge.
___________
RICHARD S. ARNOLD, Chief Judge.
On September 13, 1994, the so-called "three strikes and you're
out" proposal became a federal law. P.L. 103-322, Title VII,
§ 70001, 108 Stat. 1796, 1982, codified as 18 U.S.C. § 3559(c).
The statute imposes a mandatory sentence of life in prison for
persons convicted of three or more specified "serious violent
felon[ies]." 18 U.S.C. § 3559(c)(1). This case, the parties tell
us, is the first one in the country prosecuted under this new law.
It resulted in the imposition of a life term on the appellant,
Thomas Lee Farmer. We affirm the convictions and sentences in all
*The Hon. John B. Jones, United States District Judge for the
District of South Dakota, sitting by designation.
respects. We hold, among other things, that the three-strikes law
does not violate either the Double Jeopardy Clause of the Fifth
Amendment or the Ex Post Facto Clause of the Constitution of the
United States.
I.
The defendant Farmer was charged in a four-count indictment.
Count I charged him with violating the Hobbs Act, 18 U.S.C. § 1951,
by attempting to rob the Hy-Vee convenience store in Waterloo,
Iowa, on October 8, 1994. Count II charged him with conspiring to
violate the Hobbs Act by planning to rob Hy-Vee stores in
Des Moines and Waterloo, Iowa, beginning in September 1994, and
continuing through October of that year. Count III charged that
Farmer had used a firearm during a crime of violence (the Waterloo
robbery) in violation of 18 U.S.C. § 924(c). And Count IV charged
Farmer with being a felon in possession of a firearm in violation
of 18 U.S.C. §§ 2, 922(g)(1), and 924(a)(2). There is no doubt
that Farmer and others planned and carried out a Hy-Vee robbery in
Des Moines on September 11, 1994, and that he and others planned to
rob the Hy-Vee store in Waterloo on October 8, a plan that failed
when police were called after the robbers had entered the store.
For this reason, we will not state at length the evidence presented
in the District Court, except as necessary to understand the
various legal and evidentiary arguments that Farmer presses on this
appeal.
After the jury convicted Farmer on all four counts, the
District Court1 sentenced him as follows: on Counts I and II, life
in prison as a consequence of the three-strikes statute, 18 U.S.C.
§ 3559(c); on Count IV (being a felon in possession of a firearm),
27 years and three months, to run concurrently with the life terms
1
The Hon. Michael J. Melloy, Chief Judge, United States
District Court for the Northern District of Iowa.
-2-
on the first two counts; and on Count III (use of a firearm during
a crime of violence), five years, to run consecutively to the
sentences on the other three counts.2 The Court also imposed the
mandatory special assessment of $50.00 for each count, and ordered
the defendant to make restitution in the amount of $10,000.00.
Because of the defendant's inability to pay, no fine was imposed.
II.
We consider first the legal arguments made by defendant with
respect to the three-strikes statute. The statute provides that a
person "convicted . . . of a serious violent felony shall be
sentenced to life imprisonment . . ." under certain conditions. 18
U.S.C. § 3559(c)(1) (emphasis added). The statute comes into play
when a defendant, having been convicted of a "serious violent
felony," is shown to have been convicted of at least two crimes of
a similar nature. In the present case, the government alleged and
proved that Farmer had three previous convictions, all of them in
the Iowa state courts: murder in the second degree, robbery in the
first degree, and conspiracy to commit murder.
The legal questions raised on this appeal are important but
not difficult. Most of them are controlled by precedent. First,
Farmer argues that imprisoning him for life for what he calls
"peripheral participation in a grocery robbery" is cruel and
unusual punishment in violation of the Eighth Amendment. We doubt
the justice of the characterization "peripheral." Farmer was
deeply involved in the planning of the Waterloo robbery and, before
2
We do not understand what it means to make a sentence for a
term of years consecutive to a life term where, as here, there is
no possibility of parole on the life term. No doubt the District
Court took this step in obedience to the statute, 18 U.S.C.
§ 924(c)(1), which makes the imposition of a consecutive term of
five years mandatory. In the context of the present case, such a
sentence seems to have no practical significance, but the District
Court had no choice but to impose it.
-3-
the robbery was aborted, told one of his accomplices to "shoot 'em,
shoot 'em," referring to Hy-Vee employees. However that may be,
Farmer stands convicted of more than three violent felonies. In
the main, the level of punishment to be imposed for crimes is the
business of Congress, not the courts. Only in very narrow
circumstances has a punishment within statutory limits been held to
violate the Eighth Amendment. Imposition of a life term under the
circumstances of the present case is, in our view, well within
congressional power. See, e.g., Harmelin v. Michigan, 501 U.S. 957
(1991), in which the Supreme Court upheld a life term, without
parole, for a first offense of possession of crack cocaine. See
also Rummel v. Estelle, 445 U.S. 263, 265 (1980), upholding a life
sentence under a recidivism statute where the three felonies
involved were passing a forged check, fraudulent use of a credit
card, and obtaining money by false pretenses, none of them
involving violence. We reject Farmer's Eighth Amendment
contention.
Next, Farmer argues that the District Court had discretion
whether to impose a life term, and that, under the facts of this
case, that discretion was abused. The argument flies in the face
of the words of the statute. The statute says "shall." It
withdraws all discretion from a sentencing court. It is true that
the United States Attorney has the discretion whether to bring a
charge under the three-strikes law, but there is nothing
unconstitutional about that, in the absence of a showing (which, as
we shall see, has not been made here) that the charging decision
was based on some constitutionally forbidden factor, such as race.
Congress has power to make sentences mandatory and to withdraw all
sentencing discretion from the courts, except in capital cases.
"Congress has power to define criminal punishments without giving
the courts any sentencing discretion." Chapman v. United States,
500 U.S. 453, 467, 111 S. Ct. 1919, 1928 (1991); United States v.
Hammer, 3 F.3d 266, 269 (8th Cir. 1993) (upholding a mandatory life
sentence for involvement in a continuing criminal enterprise).
-4-
The defendant argues that the three-strikes statute violates
the Double Jeopardy Clause of the Fifth Amendment, because it
subjects him to new punishment for the crimes, listed above, of
which he has been previously convicted. Having once been convicted
and sentenced, for example, for murder in the second degree, and
having served that sentence, he cannot now, the argument runs, be
punished again by having this crime counted as one of his "three
strikes." We disagree. He is not being punished again for
previous offenses. Rather, these offenses are being taken into
account in fixing his punishment for the instant crime, violation
of the Hobbs Act. The precedents on this point are clear and
uniform. See, e.g., Parke v. Raley, 506 U.S. 20 (1992). Farmer
seeks to distinguish these cases by arguing, for example, that in
Parke the enhancement imposed on account of previous convictions
was only five years. We do not think the argument persuasive. The
holding of the case is that a recidivism provision does not violate
the Double Jeopardy Clause. The reasoning of the opinion does not
depend to any degree on the severity of the enhancement.
Similarly, Farmer urges an argument under the Ex Post Facto
Clause - that the three-strikes statute increases the punishment
for crimes committed before its enactment. Again, precedent forces
us to disagree. See, e.g., Gryger v. Burke, 334 U.S. 728, 732
(1948). As we said in United States v. Allen, 886 F.2d 143, 146
(8th Cir. 1989), "[s]o long as the actual crime for which a
defendant is being sentenced occurred after the effective date of
the new statute, there is no ex post facto violation."
In a variation of this argument under the Ex Post Facto
clause, Farmer points out that the Des Moines robbery, which was
committed two days before the enactment of the three-strikes law,
was alleged in the indictment as one of the overt acts in Count II,
the conspiracy count. In Farmer's view, this is an impermissible
use of pre-Act conduct. Again, the contention is inconsistent with
controlling caselaw. A conspiracy begun before the effective date
-5-
of a relevant statute, but continued after that date, may
constitutionally be punished under that statute. Conspiracy is a
continuing offense. See, e.g., United States v. Garfinkel, 29 F.3d
1253 (8th Cir. 1994); United States v. Tharp, 892 F.2d 691 (8th
Cir. 1989).
The last of what we may call Farmer's broadside arguments -
arguments addressed to the validity of the three-strikes law in
general - is his claim that Section 3559(c) violates the Equal
Protection component of the Due Process Clause of the Fifth
Amendment. The law, Farmer argues, has, or will have, a disparate
impact on African-Americans, because a greater proportion of them
than of other Americans will be sentenced under its provisions.
The argument is supported by citations to articles that, it is
said, show that African-Americans have been disparately impacted by
federal mandatory-minimum sentencing laws in general. The answer
is that disparate impact is not sufficient to show a constitutional
violation. The Equal Protection Clause of the Fourteenth Amendment
is not violated absent invidious or discriminatory purpose, see
Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256
(1979); Washington v. Davis, 426 U.S. 229 (1976). The same is true
of the Fifth Amendment. See, e.g., United States v. Clary, 34 F.3d
709 (8th Cir. 1994), cert. denied, 115 S. Ct. 1172 (1995). In
Clary, as in a number of other cases, we upheld that portion of the
Sentencing Guidelines that treats one gram of crack cocaine as
"worth," for sentencing purposes, 100 grams of powder cocaine. The
argument was made that this disparity in sentencing had an
unfavorable impact on African-Americans. A disparate impact, we
said, was not enough to render the differential unconstitutional.
Rather, it would have to be shown that "the decisionmaker, in this
case Congress, selected or reaffirmed a particular course of action
at least in part ``because of' not merely ``in spite of' its adverse
effects upon an identifiable group." 34 F.3d at 712. No such
showing has been made here. So Farmer's attack on equal-protection
grounds against the three-strikes law must fail for want of proof.
-6-
III.
In addition to these rather general challenges, Farmer argues
that the three-strikes law does not apply to him, because neither
his offenses of conviction nor the predicate offenses, the three
previous convictions, are "serious violent felonies" within the
meaning of the statute. In order to understand this contention we
set out the relevant portion of the statute in full text.
(2) Definitions. -- For purposes of this
subsection -- . . .
* * *
(F) the term "serious violent
felony" means --
(i) a Federal or State
offense, by whatever designation and
wherever committed, consisting of
murder (as described in section
1111); manslaughter other than
involuntary manslaughter (as
described in section 1112); assault
with intent to commit murder (as
described in section 113(a));
assault with intent to commit rape;
aggravated sexual abuse and sexual
abuse (as described in sections 2241
and 2242); abusive sexual contact
(as described in sections 2244(a)(1)
and (a)(2)); kidnapping; aircraft
piracy (as described in section
46502 of Title 49); robbery (as
described in section 2111, 2113, or
2118); carjacking (as described in
section 2119); extortion; arson;
firearms use; or attempt,
conspiracy, or solicitation to
commit any of the above offenses;
and
(ii) any other offense
punishable by a maximum term of
imprisonment of 10 years or more
that has as an element the use,
attempted use, or threatened use of
-7-
physical force against the person of
another or that, by its nature,
involves a substantial risk that
physical force against the person of
another may be used in the course of
committing the offense;
* * *
18 U.S.C. § 3559(c)(2).
First, we consider the contention that the offenses of
conviction, attempting and conspiring to interfere with interstate
commerce by robbery, in violation of 18 U.S.C. § 1951, are not
"serious violent felonies." Here it is important to have in mind
exactly what the Hobbs Act says. Section 1951 of Title 18 states:
(a) 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 imprisoned].
(b) As used in this section --
(1) The term "robbery" means the
unlawful taking or obtaining of personal
property from the person or in the presence
of another, against his will, by means of
actual or threatened force, or violence, or
fear of injury, immediate or future, to his
person or property, . . ..
If we isolate the words of the statute relevant to this
particular case, we find that Farmer was charged with, and
convicted of, attempting and conspiring to commit or threaten
physical violence in furtherance of a plan or purpose to obstruct,
delay, or affect commerce by robbery. And robbery is defined in
§ 1951(b)(1), in terms consistent with the traditional common-law
-8-
definition, as the unlawful taking of personal property from the
person or in the presence of another by force or violence. Is this
conduct a "serious violent felony" within the meaning of 18 U.S.C.
§ 3559(c)(2)(F)? We think the answer is yes. Farmer argues that
Hobbs Act robbery is not robbery as described in §§ 2111, 2113, or
2118 of Title 18 of the United States Code. It therefore, he says,
cannot be a "serious violent felony" within the meaning of
subparagraph (i) of paragraph (F) of subsection (2). We find it
unnecessary to pass on this argument, because we think it clear
that Hobbs Act robbery qualifies as a serious violent felony under
subparagraph (ii). It is an offense punishable by a maximum term
of imprisonment of ten years or more, it has as an element the use,
attempted use, or threatened use of physical force against the
person of another, and, in addition, it involves, by its nature, a
substantial risk that physical force against the person of another
may be used in the course of committing the offense. There are
types of Hobbs Act violations, for example extortion, that may not
qualify under this definition, but extortion is not what Farmer
did. He attempted to commit robbery, a crime that, as defined in
the Hobbs Act, includes the use or threatened use of force or
violence for the purpose of unlawfully taking personal property
from the person of another. Further, robbery by its very nature
involves a substantial risk that physical force against the person
of another may be used. We have no doubt that Hobbs Act robbery
qualifies as a "serious violent felony" under subparagraph (ii).
Farmer argues additionally that robbery in his particular case
is excluded from the definition by § 3559(c)(3)(A). This paragraph
reads as follows:
(A) Robbery in certain cases. - Robbery, an
attempt, conspiracy, or solicitation to commit
robbery; or an offense described in paragraph
(2)(F)(ii) shall not serve as a basis for
sentencing under [18 U.S.C. § 3559(c)] if the
defendant establishes by clear and convincing
evidence that -
-9-
(i) no firearm or other dangerous weapon
was used in the offense and no threat of use
of a firearm or other dangerous weapon was
involved in the offense; and
(ii) the offense did not result in death
or serious bodily injury (as defined in
section 1365) to any person.
It is true that the offense did not result in death or serious
bodily injury, but it is also true that a firearm was used in the
offense. We do not see how paragraph (A) can help Farmer in the
circumstances of this case.
What about the predicate offenses? As we have seen, they are
murder, robbery, and conspiracy to commit murder. Both murder and
robbery are specifically listed as predicate felonies in paragraph
(F)(i). That provision includes "a . . . State offense, by
whatever designation and wherever committed, consisting of
murder . . . [or] robbery . . .." Further, we have no doubt that
murder, even murder in the second degree, and robbery, as defined
in the law of Iowa, like Hobbs Act robbery, which we have already
discussed, would qualify under (ii) as crimes that in their nature
involve a substantial risk of physical injury.
IV.
Farmer also advances a number of arguments against his Hobbs
Act convictions that are entirely independent from his challenges
to the application in his case of the three-strikes law. First, he
suggests that his offense was only a garden-variety, single local
robbery, not the kind of thing Congress intended to reach in the
Hobbs Act. That statute, he correctly points out, applies only to
those who obstruct, delay, or affect interstate commerce or the
movement of any article or commodity in commerce, by robbery or
extortion. See United States v. French, 628 F.2d 1069, 1075 (8th
Cir.), cert. denied, 449 U.S. 956 (1980). We have no doubt that
-10-
Congress, when it passed the Hobbs Act, had in mind primarily
offenses with a broad impact on interstate commerce, as opposed to
local robberies normally prosecuted under state law. The important
point, though, is not what motivated Congress to pass the Hobbs
Act, but rather what the Hobbs Act says. Its words in no way
exclude prosecutions for single local robberies, so long as they
satisfy the requirement that commerce or the movement of any
article or commodity in commerce is obstructed, delayed, or
affected, always understanding that by "commerce," in this context,
is meant "interstate commerce."
Here, the record is full of evidence that the Waterloo robbery
had an effect on interstate commerce. The main warehouse of Hy-Vee
Food Stores, Inc., is in Chariton, Iowa, but Hy-Vee sells products
that come from all 50 states and different countries throughout the
world, with 70 per cent. coming from outside Iowa. Hy-Vee has 162
food stores, 38 convenience stores, and 20 drug stores in seven
states. We have no doubt of the power of Congress to protect from
violence businesses that are part of an interstate chain. United
States v. Lopez, 115 S. Ct. 1624 (1995), invalidated a statute
making it unlawful to possess a firearm within a certain distance
from a school. We think the case has no application to cases of
commercial establishments, such as the Hy-Vee store involved here.
See id. at 1629 (Congress has the power to "protect . . . persons
or things in interstate commerce.").
Farmer points out that some of the evidence of effect on
interstate commerce had to do with business done by the Des Moines
store, which was robbed before the effective date of the three-
strikes law. This circumstance shows, he asserts, that he in fact
is being punished for conduct that occurred prior to the enactment
of the relevant statute. We think not. Evidence about the
business operations of Hy-Vee, whether in Waterloo or Des Moines,
is relevant to show the effect on commerce of an interference with
business at the Waterloo store. Farmer was not charged with
-11-
robbing the Des Moines store, but this does not mean that evidence
as to the nature of the business done there cannot be admitted for
another purpose.
It is also suggested that the indictment is defective because
it failed to allege any effect on interstate commerce. On the
contrary, the indictment clearly alleges that "Hy-Vee Food Stores,
Inc., was engaged in the distribution and sale of food and consumer
products in commerce and in an industry which affects commerce,"
and that Farmer unlawfully obstructed, delayed, and affected
commerce "as that term is defined in Title 18, United States Code,
Section 1951 . . .." Thus, the indictment incorporated by
reference the Hobbs Act definition of "commerce": "All commerce
between any point in a State, Territory, Possession, or District of
Columbia and any point outside thereof; all commerce between points
within the same State, through any place outside such State; and
all other commerce over which the United States has jurisdiction."
18 U.S.C. § 1951(b)(3). We do not think the indictment is
defective because it failed to allege more specifically the precise
circumstances of Hy-Vee's involvement in interstate commerce. The
office of an indictment is to give notice of the offense charged,
not to plead evidence. The word "interstate," as Farmer argues,
does not appear in the indictment, but the reference to § 1951
makes it clear that "commerce," as used in that instrument, means
"interstate commerce."
V.
Finally, Farmer makes three arguments in support of his
contention that the District Court erred in denying his motion for
a new trial. Each of these arguments has to do with evidence that
the District Court ordered the jury to disregard.
First, during the re-direct examination of Reggie Williams,
who had been charged with Farmer but subsequently pleaded guilty
-12-
and testified against him, the government asked the witness whether
Farmer had ever used drugs. Defense counsel immediately objected,
and the objection was sustained. Then, at counsel's request, the
Court instructed the jury to disregard the question. Counsel then
moved for a mistrial, which was denied. On appeal, Farmer argues
that the denial of a mistrial, and the subsequent denial of his
motion for a new trial based in part on this incident, was
reversible error.
How to handle an incident of this sort is the sort of trial
decision uniquely suited to the discretion of district judges. In
this particular case, we agree with Farmer that the question was
improper and never should have been asked. It was not relevant and
potentially quite prejudicial. However, the question was never
answered, and the Court, agreeing without hesitation with defense
counsel, instructed the jury to disregard it. In general, we
presume that such admonitions are obeyed. First of all, we think
that juries are conscientious and try their best to do what courts
tell them to do. Secondly, if every potentially prejudicial remark
or piece of evidence in every trial led to a reversal, almost no
conviction could be sustained. Life is short, and perfection is
rare. In this case, we see nothing to rebut the ordinary
assumption that juries will do as they are asked, nor do we
believe, in light of all the other evidence in this record, that
the mere asking of the question about drug use could have had any
substantial effect on the outcome of the case.
The next incident involves the testimony of Ben White. The
witness had testified that Farmer had asked him on several
occasions to assist in a robbery. One such conversation took place
in Norwalk, Iowa, between Des Moines and Waterloo. Farmer, White,
and others were at a service station. The government asked who was
involved in the conversation, and the witness testified as follows:
A. Just me and Tommie.
-13-
Q. Just the two of you?
A. Yeah, and Michael.
Q. And Mike?
A. Yeah.
Q. What happened to the other person
that was in the car?
A. I think he went to Norwalk because
he didn't like being in the car
because we had got stopped by the
police for gasoline because it was
not paid for, so we returned back to
Norwalk and -- because I'd --
MR. PARRISH: I'm going to
object to that, your Honor. Move to
approach the bench for some --
THE COURT: I'll sustain.
Disregard anything having to do with
not paying for gasoline, ladies and
gentlemen of the jury. . . .
Again, we think the admonition to the jury was effective.
Farmer argues that the witness was allowed to testify about another
crime committed by Farmer, theft of gasoline, and that the
prejudicial effect of this evidence clearly outweighed its
probative value, so that, under Fed. R. Evid. 404(b), it should
have been excluded. The government says, to the contrary, that the
evidence was merely part of the story of the crime - attempted
robbery of the store in Waterloo - with which Farmer was charged.
The conversation took place while this crime was being discussed,
and while Farmer and others were on their way to Waterloo to commit
the crime. Perhaps the government is right about this, but, even
if it is not, we believe the District Court properly exercised its
discretion in excluding the evidence, instructing the jury to
disregard it, and denying the motion for a mistrial. As the Court
said, "I don't think it's prejudicial that it requires a mistrial,"
Tr. 623, and we believe this conclusion was within the authority of
-14-
the trial judge.
Finally, Farmer objects to the fact that Michael Williams,
during the course of cross-examination by Farmer's lawyer,
described Farmer and another participant in the crime as "vicious."
The Court had entered an order in limine forbidding the government
to refer to the defendant as a "hardened criminal." No such
reference ever took place. Neither the government nor any witness
ever used this phrase to describe Farmer. Under vigorous cross-
examination, Michael Williams was claiming that Farmer and Michael
Einfeldt had pressured him to help in the robbery. Defense counsel
was expressing skepticism about this testimony, and Michael
Williams then made the following statement:
I was trying to get out of it. If you
understood the vicious character your client
is and Michael Einfeldt is, you probably would
participate in it too . . ..
Tr. 913. Again, defense counsel moved to strike the statement from
the record and that the jury be advised to disregard it. The Court
granted this motion. This time, no motion for mistrial was made,
but the Court would presumably have denied such a motion, and we
find no fault with the Court's handling of this incident. The
witness was claiming that Farmer had forced him into committing a
crime. This claim was being challenged by Farmer's lawyer. For
the witness to express an unfavorable opinion about Farmer's
character in defense of his own conduct was entirely expectable.
We do not think that such a characterization would have had much
persuasive influence on the jury, and we hold that the District
Court did not abuse its discretion.
VI.
In short, after considering all of Farmer's arguments with the
seriousness that the penalties imposed in this case demand, we are
-15-
convinced that no error of law and no abuse of discretion occurred
in this case.
We take this occasion to commend Farmer's appointed counsel
for his diligent service on this appeal. His briefs are literate
and commendably free of typographical errors. They set forth
verbatim the text of relevant statutes, which is a great help to
the Court.
The convictions and sentences are affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-16-