United States v. Carr , 261 F. App'x 560 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5109
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CALEB J. CARR,
Defendant - Appellant.
No. 06-5143
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHN J. SMALL,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Newport News. Jerome B. Friedman,
District Judge. (4:06-cr-00006-JBF)
Argued: December 7, 2007 Decided: January 7, 2008
Before DUNCAN, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Catherine C. BLAKE, United States District Judge for the District
of Maryland, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: James Stephen Ellenson, Newport News, Virginia; Stephen A.
Hudgins, Newport News, Virginia, for Appellants. Michael R. Gill,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Chuck
Rosenberg, United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
A jury convicted Caleb Carr and John Small of conspiracy to
violate the Hobbs Act, by obstructing, delaying, and affecting
interstate commerce by robbery, 18 U.S.C. §§ 371, 1951(a). Both
Carr and Small were charged with other related substantive
offenses, namely numerous counts of both Hobbs Act robbery, id. §
1951(a), and using, carrying, and possessing firearms in relation
to the Hobbs Act offenses, id. § 924(c)(1). Small appeals his
convictions, challenging the district court’s denial of his motion
to suppress, the district court’s denial of his motion to sever his
case from Carr’s case, the sufficiency of the evidence to support
his convictions, and the district court’s instruction on the Hobbs
Act’s interstate commerce element. Carr appeals his convictions,
joining Small’s jury instruction argument. We affirm.
First, Small asserts that the district court erred when it
denied his motion to suppress. According to Small, the police
officers’ entry on March 15, 2005 into his residence against his
wishes and without a warrant violated his rights as protected by
the Fourth Amendment. He also claims that the protective pat-down
of his person that followed shortly after the entry and led to the
recovery of a firearm also violated his Fourth Amendment rights.
In reviewing the district court’s denial of a motion to suppress,
we review questions of law de novo and findings of fact and
reasonable inferences drawn from those findings for clear error.
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United States v. Hill, 322 F.3d 301, 304 (4th Cir. 2003). Having
carefully reviewed Small’s Fourth Amendment claims, we conclude
that the district court did not err when it denied Small’s motion
to suppress, as the initial entry into the residence was clearly
justified pursuant to the exigent circumstances exception to the
warrant requirement, see United States v. Cephas, 254 F.3d 488,
494-95 (4th Cir. 2001) (setting forth the factors the court must
consider in determining whether exigent circumstances are present),
and the pat-down that followed was warranted to protect the
officers’ safety, see Terry v. Ohio, 392 U.S. 1, 27 (1968) (noting
that officers may stop and frisk a suspect if they have a
reasonable suspicion that both criminal activity is afoot and the
suspect is armed and dangerous).
Next, Small contends that the district court erred when it
denied his motion for severance. Essentially, Small contends that
severance was warranted because of the spillover effect of the
evidence admitted against Carr. We review a district court’s
denial of a motion for severance for an abuse of discretion.
United States v. Ford, 88 F.3d 1350, 1361 (4th Cir. 1996). A
“party moving for severance must establish that prejudice would
result from a joint trial.” United States v. Brooks, 957 F.2d
1138, 1145 (4th Cir. 1992).
We find Small’s argument unpersuasive. “Defendants who have
been charged in the same conspiracy indictment should ordinarily be
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tried together.” Id. Because Small was involved in the same
overall conspiracy as Carr, it was proper for Small and Carr to be
tried together. The mere fact that evidence against one defendant
may be stronger than the evidence against another defendant does
not warrant severance. Id. Each of the charges against Small
arose out of the same conspiracy as those of Carr. While the
government did not allege that Small participated in the robbery in
which Carr was caught red-handed, this fact alone does not justify
severing his trial from Carr’s trial, especially since the district
court in this case cautiously instructed the jury that it was not
to consider the evidence against one defendant when deciding upon
the guilt or innocence of the other defendant. See id. (concluding
that the record failed to indicate that either defendant was
convicted based on spillover evidence because the district court
properly instructed the jury that it was not to consider the
evidence against one defendant when deciding upon the guilt or
innocence of another defendant). Moreover, Small is unable to meet
his burden of showing that he was prejudiced by the joinder. See
id. (noting that there was abundant evidence, independent of the
evidence against the other codefendants, supporting the convictions
of both defendants that rendered the spillover argument meritless).
Small also contends that there is insufficient evidence in the
record to support his convictions. A jury’s verdict must be upheld
on appeal if there is substantial evidence in the record to support
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it. Glasser v. United States, 315 U.S. 60, 80 (1942). “[A]n
appellate court’s reversal of a conviction on grounds of
insufficient evidence should be confined to cases where the
prosecution’s failure is clear.” United States v. Jones, 735 F.2d
785, 791 (4th Cir. 1984) (citation and internal quotation marks
omitted). In determining whether the evidence in the record is
substantial, we view the evidence in the light most favorable to
the government and inquire whether there 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. Burgos, 94 F.3d 849, 862 (4th Cir. 1996)
(en banc). A defendant challenging the sufficiency of the evidence
faces a heavy burden. United States v. Beidler, 110 F.3d 1064,
1067 (4th Cir. 1997). In evaluating the sufficiency of the
evidence, we do not review the credibility of the witnesses and
assume that the jury resolved all contradictions in the testimony
in favor of the government. United States v. Romer, 148 F.3d 359,
364 (4th Cir. 1998).
We have carefully reviewed the record and conclude that the
evidence in the record is sufficient to support the jury’s
verdicts. See United States v. To, 144 F.3d 737, 747-48 (11th Cir.
1998) (noting that, to prove a Hobbs Act conspiracy, the government
must show three things, namely that “(1) two or more persons agreed
to commit a robbery encompassed within the Hobbs Act; (2) the
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defendant knew of the conspiratorial goal; and (3) the defendant
voluntarily participated in helping to accomplish the goal”);
United States v. Williams, 342 F.3d 350, 353 (4th Cir. 2003)
(noting that a Hobbs Act violation requires proof of two elements,
namely, (1) the underlying robbery or extortion crime; and (2) an
effect on interstate commerce); United States v. Mitchell, 104 F.3d
649, 652 (4th Cir. 1997) (holding that, in a § 924(c)(1)
prosecution, the government must prove that the defendant used or
carried a firearm and that the defendant did so during and in
relation to a drug trafficking offense or a crime of violence).
Finally, Small and Carr challenge the district court’s
instruction on the interstate commerce element of a Hobbs Act
violation. According to the defendants, the district court’s
instruction allowed the jury to conclude that only a probable
effect on interstate commerce was necessary for conviction, and a
probable effect on interstate commerce is not the standard in this
circuit. The decision whether to give a jury instruction, and the
content of that instruction, are reviewed for an abuse of
discretion. United States v. Burgos, 55 F.3d 933, 935 (4th Cir.
1995). “This court reviews jury instructions in their entirety and
as part of the whole trial” to determine “whether the court
adequately instructed the jury on the elements of the offense and
the accused’s defenses.” United States v. Bostian, 59 F.3d 474,
480 (4th Cir. 1995) (citation and internal quotation marks
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omitted). Because we have held that the Hobbs Act’s interstate
commerce element is satisfied when the effect on interstate
commerce is “reasonably probable,” United States v. Buffey, 899
F.2d 1402, 1404 (4th Cir. 1990), we reject the defendants’
argument. See also United States v. Bailey, 990 F.2d 119, 125 (4th
Cir. 1993) (noting that interstate commerce element may be
satisfied even when the impact upon commerce is small, and it may
be shown by proof of probabilities without evidence that any
particular commercial movements were affected). In any event, even
if the district court’s instruction was erroneous, any error here
is harmless beyond a reasonable doubt. See Neder v. United States,
527 U.S. 1, 9-10 (1999) (holding that harmless-error analysis
applies when a district court’s jury instructions omit or misstate
an element of an offense).
For these reasons, we affirm the district court’s judgments.
AFFIRMED
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