United States v. Tate ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5828
TOM AARON TATE,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, District Judge.
(CR-94-147-MU)
Submitted: July 31, 1998
Decided: August 31, 1998
Before MICHAEL and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
George V. Laughrun, II, GOODMAN, CARR, NIXON,
LAUGHRUN & LEVINE, P.A., Charlotte, North Carolina, for
Appellant. Mark T. Calloway, United States Attorney, Brian L. Whis-
ler, Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit.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:
Tom Aaron Tate ("Tate") appeals his convictions for conspiracy to
obstruct, delay, and affect commerce by robbery, in violation of 18
U.S.C.A. § 1951(a) (West Supp. 1998); possession of a firearm dur-
ing and in relation to a crime of violence, in violation of 18 U.S.C.A.
§ 924(c) (West Supp. 1998); and possession of a firearm by a con-
victed felon, in violation of 18 U.S.C.A. § 922(g) (West Supp. 1998).
We affirm.
From February 1994 through July 1994, Tate, along with co-
defendants Randy Tate and Michael Anthony Edwards, robbed six
vending truck operators at gunpoint in the Charlotte, North Carolina
area. The evidence at trial established that during the robberies, Tate
and his accomplices wore ski masks and gloves, used duct tape to
bind the drivers' hands and to cover the drivers' eyes and mouths, and
intimidated the drivers through threats of death and violence, includ-
ing the use of a .22 caliber revolver. Tate and his accomplices stole
approximately $15,653 in currency, personal property and goods
belonging to the vending services.
Following the sixth robbery, Charlotte police officers, on patrol in
a local neighborhood, pulled over a vehicle driven by Tate to serve
an outstanding warrant on Randy Tate, who was a passenger in the
car along with Edwards. The officers arrested Randy Tate and
detained Tate and Edwards. During a search of the vehicle, officers
found a handgun, a Chicago Bulls t-shirt with two holes cut out, a
ladies stocking with two holes cut out, another mask, and three pairs
of gloves. The officers also found what appeared to be a white money
bag containing the personal effects of one of the vending truck drivers
who had been robbed and two money bags containing coins.
Following the defendants' arrest, Edwards provided three written
statements implicating himself along with Tate and Randy Tate in the
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vending truck robberies. Edwards also stated that Tate was in posses-
sion of a .22 caliber revolver during the robberies.
On appeal, Tate asserts that the evidence presented at trial was
insufficient to support his convictions. 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).
Tate first claims that the Government failed to provide an in-court
identification. "A witness need not physically point out a defendant
so long as the evidence is sufficient to permit the inference that the
person on trial was the person who committed the crime." United
States v. Taylor, 900 F.2d 779, 782 (4th Cir. 1990) (citing Delegal v.
United States, 329 F.2d 494 (5th Cir. 1964)). A review of the record
discloses that there was ample evidence for the jury to infer that Tate
was involved in the robberies. Edwards testified to being involved in
two of the vending truck robberies in which Tate participated. The
evidence also established that items from the robberies were found in
the vehicle Tate was driving at the time of his arrest. Further, while
in custody, Tate admitted to the officers that he had committed the
last robbery.1 When this evidence is construed in the light most favor-
able to the Government, we find that the jury could reasonably infer
that Tate committed the robberies.
Tate next claims that the evidence at trial was insufficient to sup-
port a conviction under the Hobbs Act because it failed to show that
the robbery "substantially affected" interstate commerce. Tate relies
on United States v. Lopez, 514 U.S. 549 (1995), to support his conten-
tion. In Lopez, the Supreme Court invalidated 18 U.S.C.A.
§ 922(q)(1)(A) (West Supp. 1995), because the statute "contains no
jurisdictional element which would ensure, through case-by-case
inquiry, that the firearm possession in question affects interstate com-
merce." Id. at 561. Unlike the statute at issue in Lopez, there is a juris-
dictional element in the Hobbs Act and thus, the"substantially
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1 While in custody, Tate signed a waiver of rights and agreed to answer
questions.
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affects" test is not applicable, and the government need only show a
de minimis effect on interstate commerce. United States v. Farrish,
122 F.3d 146, 148-49 (2d Cir. 1997) (holding that"to satisfy the juris-
dictional element of the Hobbs Act, the Government need only show
a `minimal' effect on interstate commerce"), cert. denied, ___ U.S.
___, 66 U.S.L.W. 3474, 66 U.S.L.W. 3545 (U.S. Feb. 23, 1998) (No.
97-1136); United States v. Atcheson, 94 F.3d 1237, 1241-42 (9th Cir.
1996), cert. denied, ___ U.S. #6D6D 6D#, 65 U.S.L.W. 3586 (U.S. Feb. 24,
1997) (No. 96-7644); 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) ("[A]ll that is
required to bring an extortion within the statute is proof of a reason-
ably probable effect on commerce, however minimal, as a result of
the extortion.").
The evidence at trial showed that Tate robbed the vending truck
drivers of over $8000 in currency, stole various personal effects from
the drivers, and stole goods belonging to each vending service. Testi-
mony further established that the vending services operated within
interstate commerce. Thus, the evidence was sufficient to sustain a
Hobbs Act charge.
Finally, Tate asserts that the evidence was insufficient to support
the weapons charges. Tate claims that the evidence presented did not
conform to the statutory definition of a firearm because the weapon
used during the robberies did not have a firing pin. 2
There is no requirement that a firearm be operable in order to sat-
isfy the definition of firearm under 18 U.S.C. § 921(a)(3) (1994). See
United States v. Brown, 117 F.3d 353, 355-56 (7th Cir. 1997) (hold-
ing that removal of firing pin does not disqualify weapon as "fire-
arm"); United States v. Willis, 992 F.2d 489, 491 n.2 (4th Cir. 1993).
Thus, viewing the evidence in the light most favorable to the Govern-
ment, we find it sufficient to support Tate's conviction.
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2 "[T]he term `firearm' means (A) any weapon (including a starter gun)
which will or is designed to or may readily be converted to expel a pro-
jectile by the action of an explosive." 18 U.S.C.§ 921(a)(3) (1994).
4
Lastly, Tate asserts that the district court violated Fed. R. Evid.
801(d)(1)(B)3 by admitting the prior written statements of co-
defendant Edwards. Tate claims that the prosecution admitted the evi-
dence to bolster its witness. Because Tate did not object at trial, we
review for plain error. See United States v. Olano, 507 U.S. 725, 731-
32 (1993).
The record shows that on direct examination, Edwards testified that
he provided three statements to the police--one prior to his arrest, one
the day of his arrest, and one two days after his arrest--and that each
statement was true at the time it was given. The prosecutor did not
offer the statements into evidence on direct examination. On cross-
examination, however, the defense questioned Edwards about the
contents of the statements, attacking his credibility as a witness. On
re-direct examination, the prosecution clarified how the statements
were taken and moved to admit them into evidence.
The statements at issue were given before any plea negotiations
began or before the involvement of counsel. Thus, the statements
were provided before any alleged fabrication, improper influence or
motive came into being. See Tome v. United States, 513 U.S. 150, 156
(1995). Further, the defense inquired as to the substance of the state-
ments to demonstrate inconsistencies between the witness' pre-trial
and trial statements thereby justifying the prosecution's request to
admit the statements for completeness and rehabilitation. See, e.g.,
United States v. Ellis, 121 F.3d 908, 921 (4th Cir. 1997), cert. denied,
___ U.S. ___, 66 U.S.L.W. 3457 (U.S. Jan. 12, 1998) (No. 97-7095).
We therefore find that the district court did not err in admitting the
prior statements.
Accordingly, we affirm Tate's convictions. We dispense with oral
argument because the facts and legal contentions are adequately pre-
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3 Under Fed. R. Evid. 801(d)(1)(B), "[a] statement is not hearsay if--
[t]he declarant testifies at the trial or hearing and is subject to cross-
examination concerning the statement, and the statement is . . . (B) con-
sistent with the declarant's testimony and is offered to rebut an express
or implied charge against the declarant of recent fabrication or improper
influence or motive."
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sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED
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