United States v. Chavful , 100 F. App'x 226 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 20, 2004
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-50462
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DONTE CHAVFUL,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Texas
( 01-CR-412 )
Before GARWOOD, HIGGINBOTHAM, and SMITH, Circuit Judges.
PER CURIAM:*
Donte Chavful appeals his jury trial convictions for two
counts of conspiring and attempting to obstruct, delay, and affect
commerce by robbery in violation of the Hobbs Act,1 and for one
count of using or carrying a firearm during a crime of violence in
violation of 18 U.S.C. § 924(c). Chavful contends that (1) the
evidence was insufficient to support his Hobbs Act convictions, (2)
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
18 U.S.C. § 1951(a) (2000).
the district court allowed the indictment to be constructively
amended, and (3) the district court abused its discretion by
excluding evidence of his prior state court acquittal, and by
admitting a letter indicating his involvement with a gang, expert
testimony explaining the letter, and a handwriting expert’s
testimony regarding Chavful’s attempt to disguise his writing. We
AFFIRM.
I
On August 2, 1994, an airport shuttle driver was shot and
killed during an attempted robbery in San Antonio. Julius Steen,
a known gang member, was arrested on August 15 for a different
shooting, and admitted during questioning that he took part in the
shuttle driver’s shooting as well. Steen became an informant for
the state, testifying that he, along with Donte Chavful and Dwayne
Dillard, as members of the same gang, conspired to rob the airport
shuttle driver. Steen testified that Dillard drove the car,
Chavful shot the driver, and Steen rode in the back seat. Texas
charged Chavful with murder, but he was acquitted.
The United States charged Chavful with conspiring and
attempting to obstruct, delay and affect commerce by robbery of the
airport shuttle in violation of the Hobbs Act. The Hobbs Act
indictments at issue alleged that Donte Chavful:
did knowingly and willfully conspire, combine,
confederate, and agree together with others
known to the Grand Jury to in any way and
degree obstruct, delay, and affect commerce
2
and the movement of any article and commodity
in commerce, by robbery of the driver of a
Star Shuttle airport van - an instrumentality
of commerce, who was then waiting beside the
Crockett Hotel in San Antonio, Texas, all in
violation of Title 18, United States Code,
Section 1951.
The jury found Chavful guilty of the Hobbs Act charges and of
using or carrying a firearm during a crime of violence.
II
A
Chavful first asserts that there was insufficient evidence to
convict him of conspiring and attempting to obstruct, delay, or
affect commerce by robbery. He claims that because the indictment
alleged that he obstructed commerce by robbery of “a van - an
instrumentality of commerce,” the government was specifically
required to prove that the airport shuttle was an instrumentality
of interstate commerce. Chavful urges that the government failed
to do so, and the district court allowed him to be convicted based
on any effect on interstate commerce was erroneous.
In reviewing a challenge to the sufficiency of evidence, we
must determine “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable
doubt.”2
2
United States v. Williams, 264 F.3d 561, 576 (5th Cir.
2001).
3
The two essential elements of a Hobbs Act violation are (1) a
robbery, extortion, or attempted robbery or extortion, and (2) a
resulting interference with commerce.3 Commerce is defined
broadly, reaching to its constitutional limit.4 If an indictment
charges nonessential facts, the government is not required to prove
them to obtain and sustain a conviction.5 “[T]he Government need
not prove all facts charged in the indictment as long as it proves
other facts charged in the indictment which do satisfy the
essential elements of the crime.”6
Given the essential elements of the Hobbs Act violation and
the applicable caselaw, Chavful’s argument fails. The Hobbs Act
counts only required the government to prove an attempt and a
conspiracy to affect commerce by robbery. The indictment charged
that Chavful “did knowingly conspire, combine, confederate, and
agree together with others . . . to in any way and degree obstruct,
delay, and affect commerce and the movement of any article and
commodity in commerce, by robbery of the driver of a Star Shuttle
airport van – an instrumentality of commerce.” Because an effect
3
United States v. Robinson, 119 F.3d 1205, 1212 (5th Cir.
1997).
4
Id.; 18 U.S.C. § 1951(b)(3).
5
Robinson, 974 F.2d at 578; United States v. Hughes, 766 F.2d
875, 879 (5th Cir. 1985); United States v. England, 480 F.2d 1266,
1269 (5th Cir. 1973).
6
England, 480 F.2d at 1269.
4
on an instrumentality of commerce is not an element of a § 1951(a)
violation, the charge in the indictment that the airport shuttle
was an instrumentality of commerce was surplusage.7 The
government’s evidence demonstrating that various aspects of
commerce were affected by the robbery - a contention that Chavful
does not dispute on appeal - was sufficient to allow the jury to
find all essential elements of the Hobbs Act violations beyond a
reasonable doubt.
B
Chavful next asserts that the indictment was constructively
amended. He reads the indictment as charging him with affecting
only one particular type of commerce - the airport shuttle. He
urges that despite this limitation, the jury was allowed to convict
him upon finding that the robbery affected any type of interstate
commerce. Chavful relies on the rule established by Stirone v.
United States: “when only one particular kind of commerce is
charged to have been burdened[,] a conviction must rest on that
charge and not another.”8
Once a grand jury returns an indictment, its charges may only
be broadened by the grand jury itself.9 A corollary of this rule
7
See Robinson, 974 F.2d at 578; Hughes, 766 F.2d at 879;
England, 480 F.2d at 1269.
8
Stirone v. United States, 361 U.S. 212, 218 (1960).
9
Id. at 215-16.
5
is that “a court cannot permit a defendant to be tried on charges
that are not made in the indictment against him.”10 “A constructive
amendment to the indictment occurs when the jury is permitted to
convict the defendant on a factual basis that effectively modifies
an essential element of the offense charged in the indictment.”11
An indictment may be constructively amended by evidence offered or
by jury instructions.12 However, “[n]ot every variance between the
indictment’s allegations and proof at trial engenders a
constructive amendment. For example, no constructive amendment
arises ‘where the evidence proves facts different from those
alleged in the indictment, but does not modify an essential element
of the charged offense.’”13 If a constructive amendment occurs, the
conviction must generally be reversed.14
To find a constructive amendment here, the evidence adduced at
trial or the jury instructions must have permitted the jury to
convict Chavful on a factual basis that effectively modified the
10
Id. at 217.
11
United States v. Millet, 123 F.3d 268, 272 (5th Cir. 1997).
12
Id.13
United States v. Munoz, 150 F.3d 401, 417 (5th Cir. 1998)
(quoting United States v. Salvatore, 110 F.3d 1131, 1145 (5th Cir.
1997)) (internal citations omitted).
14
United States v. Threadgill, 172 F.3d 357, 370 (5th Cir.
1999).
6
essential elements of the Hobbs Act charges.15 Contrary to
Chavful’s assertion, the indictment did not charge that only one
particular kind of commerce was affected; instead, it charged that
Chavful did [conspire and attempt to] “in any way and degree
obstruct, delay, and affect commerce and the movement of any
article or commodity in commerce, by robbery of the driver of a
Star Shuttle airport van - an instrumentality of commerce.” Unlike
the indictment in Stirone, which charged that the defendant’s
extortion affected one specific commodity in commerce, Chavful’s
indictment clearly charged that commerce in general was affected by
his robbery of the airport shuttle. This indictment limits the
government to proving an effect on commerce as a result of the
robbery of the shuttle, and the evidence and jury instructions
stayed true to this limitation. Accordingly, the latter part of
the Stirone rule applies: “under an indictment drawn in general
terms[,] a conviction might rest upon a showing that commerce of
one kind or another had been burdened.”16 Neither the evidence of
the robbery’s affect on various aspects of interstate commerce nor
the jury instructions constructively amended the indictment.
C
Finally, Chavful argues that the judge erroneously admitted
into evidence (1) a letter Chavful wrote that demonstrates his
15
Millet, 123 F.3d at 272-73.
16
Stirone, 361 U.S. at 218.
7
affiliation with a gang and refers to the people involved in the
conspiracy, (2) an expert’s testimony explaining elements of the
letter, and (3) a handwriting expert’s testimony that Chavful
disguised his handwriting in samples given to the FBI. Chavful
asserts that this evidence was irrelevant, and assuming relevancy,
was unfairly prejudicial. Chavful also asserts that the Judge erred
in refusing to admit evidence of his prior state acquittal.
Considering the charges, Chavful’s assertions at trial, and the
nature of the evidence admitted, there is no reversible error.
We review evidentiary rulings under a deferential standard.17
Reversal is warranted only when the admission constituted an abuse
of discretion.18 Evidence is relevant if it has “any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence.”19 Otherwise relevant evidence “may
be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or
misleading the jury.”20 The trial judge has broad discretion over
determinations of relevance under Federal Rule of Evidence 401 and
17
United States v. Elwood, 999 F.2d 814, 816 (5th Cir. 1993).
18
Id.19
FED. R. EVID. 401.
20
FED. R. EVID. 403.
8
unfair prejudice or confusion under Federal Rule of Evidence 403.21
The gang letter was probative of Chavful’s association with
other members of the conspiracy. It also served to rebut Chavful’s
attempt to distance himself from the gang and the other members of
the conspiracy. Chavful asserts that the letter’s admission was
unfairly prejudicial because the letter includes violent and
obscene language, racial slurs, and threats. While the language of
the letter was prejudicial to Chavful, it was not unfairly
prejudicial. Chavful does not dispute that he wrote the letter,
and the letter clearly serves to associate him with the gang and
other members of the conspiracy. Finally, the district court gave
extensive limiting instructions to the jury, explaining that gang
membership was not inherently bad and that gang membership was not
an issue in the case. The highly probative value of the evidence,
coupled with the judge’s limiting instructions, belies Chavful’s
assertion that the evidence’s relevance is substantially outweighed
by its unfair prejudice. Under these circumstances, the court did
not abuse its discretion.
Second, Chavful asserts that the gang expert’s testimony was
irrelevant because the letter itself was irrelevant. This argument
fails for the reasons above. Furthermore, the letter included
various slang terms that would be meaningless without the
21
United States v. Madera, 574 F.2d 1320, 1322 (5th Cir.
1978).
9
assistance of an expert’s explanation. The judge did not abuse his
discretion by admitting the testimony; its relevance was not
substantially outweighed by the danger of unfair prejudice.
Third, Chavful contests the admission of the handwriting
expert’s testimony regarding his attempt to disguise his
handwriting. He claims that because there was no dispute that he
wrote the letter, the expert’s testimony was irrelevant and was
included only to inflame the jury. However, under our caselaw, a
jury may consider attempted disguise as demonstrating a defendant’s
consciousness of guilt.22 Chavful does not respond to this
authority. Even assuming that the district court abused its
discretion by admitting the testimony, any error would be harmless.
The government presented a significant amount of evidence
demonstrating Chavful’s involvement in the robbery and his
association with the coconspirators.
Finally, Chavful argues that the court erred in excluding
evidence of his prior acquittal. Based on the following evidence
and events put before the jury, he asserts that his presumption of
innocence was improperly eroded: (1) two jurors saw him in
handcuffs; (2) during his testimony, Steen referred to an event
that occurred “after Chavful’s trial,” which Chavful views as
implying that he was tried and convicted in state court; (3) the
22
See United States v. Stembridge, 477 F.2d 874, 876 (5th Cir.
1973); see also United States v. Jacobowitz, 877 F.2d 162, 169 (2d
Cir. 1989).
10
person who obtained the gang letter testified that she got it from
an inmate who had received it from Chavful, which Chavful views as
implying his incarceration from a conviction; and (4) a sheriff
testified that Chavful had a visitation list at the prison.
His argument is without merit. It is axiomatic that a
criminal defendant has a constitutional right to a presumption of
innocence.23 The Court has left trial judges to determine what
evidence and procedures may erode the presumption “based on reason,
principle, and common human experience.”24 Courts have found the
presumption impermissibly eroded by requiring a defendant to wear
prison attire throughout the trial.25 However, the nature of the
evidence at issue here did not rebut the presumption of innocence.
Contrary to Chavful’s assertion, the court did not abuse its
discretion by refusing to admit evidence of Chavful’s acquittal
because the evidence at issue did not rebut the presumption of
innocense. As we explained in United States v. De La Rosa, “as a
general matter, a trial court does not abuse its discretion in
excluding evidence of a prior acquittal on a related charge.”26 We
noted that evidence of acquittal is irrelevant to the defendant’s
23
See Estelle v. Williams, 425 U.S. 501, 503-04 (1976).
24
Id. at 504.
25
Id. at 504-505, 512-13.
26
United States v. De La Rosa, 171 F.3d 215, 219 (5th Cir.
1999).
11
innocence, is unexempted hearsay, and any relevance may be
outweighed by the danger of unfair prejudice and jury confusion.27
Chavful does not cite any authority explaining why De La Rosa’s
general rule should not control. Moreover, other evidence
illustrates that any burden on Chavful’s presumption of innocence
must have been neutralized. Evidence before the jury clearly
showed that Chavful must have been acquitted in state court.
Namely, there was evidence that he was visiting people outside of
jail between the crime at issue and the federal trial; the only
implication is that if they knew a state trial occurred, Chavful
must have been acquitted.
III
For these reasons, Chavful’s convictions are AFFIRMED.
27
Id. at 219-20.
12