United States v. Manila Vichitvongsa , 819 F.3d 260 ( 2016 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0079p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
│ Nos. 14-6013/15-5037
v. │
>
│
MANILA VICHITVONGSA, aka Manee Vichitvongsa, │
Nelly, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 3:11-cr-00204—Aleta Arthur Trauger, District Judge.
No. 3:12-cr-00013—Todd J. Campbell, District Judge.
Argued: January 28, 2016
Decided and Filed: April 4, 2016
Before: GRIFFIN and STRANCH, Circuit Judges; and GWIN, District Judge.*
_________________
COUNSEL
ARGUED: Luke A. Evans, BULLOCK, FLY, HORNSBY & EVANS, Murfreesboro,
Tennessee, for Appellant. Philip H. Wehby, UNITED STATES ATTORNEY’S OFFICE,
Nashville, Tennessee, for Appellee. ON BRIEF: Luke A. Evans, BULLOCK, FLY,
HORNSBY & EVANS, Murfreesboro, Tennessee, for Appellant. Philip H. Wehby, UNITED
STATES ATTORNEY’S OFFICE, Nashville, Tennessee, for Appellee.
*
The Honorable James S. Gwin, United States District Judge for the Northern District of Ohio, sitting by
designation.
1
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_________________
OPINION
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GRIFFIN, Circuit Judge. This consolidated appeal raises an important issue regarding
the application of 18 U.S.C. § 924(c)(1)’s criminalization of the use, carry, or possession of a
firearm during the commission of two simultaneous conspiracies. For his role in two separate
armed robberies, a jury convicted defendant Manila “Nelly” Vichitvongsa of two counts of
conspiring to commit Hobbs Act robbery, two counts of conspiring to traffic drugs, and four
counts of using a firearm to further these conspiracies in violation of § 924(c) (two for each
robbery). As a matter of statutory interpretation, we hold that the simultaneous violation of two
federal conspiracy statutes cannot support two § 924(c) charges on the sole basis of one firearm
use. Our conclusion is premised upon our en banc opinion in United States v. Johnson, 25 F.3d
1335 (6th Cir. 1994) (en banc), and supported by the decisions of our sister circuits, see United
States v. Rentz, 777 F.3d 1105, 1114 (10th Cir. 2015) (collecting cases). The district court thus
erred in not dismissing one § 924(c) count for each robbery. Accordingly, we vacate two of
defendant’s § 924(c) convictions, but affirm in all other respects.
I.
Case Number 15-5037
Within the span of two weeks in June 2011, defendant Vichitvongsa planned and
executed two armed robberies (in LaVergne and Smith County, Tennessee) with several co-
conspirators with the hopes of stealing hundreds of thousands of dollars and large amounts of
illegal drugs from two drug dealers. Each robbery was violent. They ransacked houses,
restrained and beat victims, and shot one man in the chest. Neither robbery accomplished what
defendant and his co-conspirators intended; they failed to locate money and drugs, and instead
resorted to stealing a few miscellaneous items.
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The LaVergne Robbery
On June 11, 2011, defendant met several co-conspirators outside a restaurant in suburban
Nashville. There they planned to rob the residence of Chris Leggs, a cocaine dealer. Leggs’s
residence was in LaVergne, a neighboring suburb. They believed it contained hundreds of
thousands of dollars and several kilograms of cocaine. Co-conspirator Nickless Whitson came
up with the idea to rob the house, and he and defendant told the others about the amount of
money and cocaine they expected to be at the house.
The co-conspirators then drove to the house. Two caused a distraction, while the others
forced their way inside. Four carried guns, including defendant. They threatened and assaulted
the sole occupant, Dominique Baker, and tied her up while they ransacked the house. After
searching for money and drugs for 30 to 45 minutes to no avail, they took a few guns and
jewelry, and left.
The Smith County Robbery
About two weeks after the LaVergne robbery, Vichitvongsa and others concocted a plan
to rob Daniel Crowe’s house, a marijuana dealer in Smith County, Tennessee. William Byrd had
purchased marijuana from Crowe to sell on a by-the-pound basis. Byrd, who did not play a role
in the LaVergne robbery, told defendant that he was “under the impression that there was a large
amount of money” at Crowe’s house, “[a]round $300,000.” Although Byrd never told defendant
there was marijuana at Crowe’s house, defendant told others there would be extensive amounts
of marijuana there. Defendant indicated he wanted to rob the house, and a few days before the
robbery, Byrd escorted Whitson and defendant to the house for reconnaissance purposes.
On June 27, 2011, the robbers met at a Home Depot, purchased zip ties, and caravanned
to Crowe’s residence. Four, including defendant, entered the house—armed—while two
remained outside. They tied up Crowe’s mother and stepfather, Lorraine and William Webb,
and began searching the house. The robbers threatened to harm the Webbs, with one suggesting
they light Lorraine Webb on fire. William Webb eventually freed himself and lunged with a
plastic sheath at a robber, who shot him in the chest. Others fired shots as well. The robbers fled
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shortly thereafter, taking items they found in the house—including guns and grow lamps—in the
Webbs’s car.
For each robbery, a grand jury charged Vichitvongsa with four counts, for a total of eight:
two counts of conspiring to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951 (Counts
1 and 5); two counts of brandishing/discharging a firearm during a conspiracy to commit Hobbs
Act robbery in violation of 18 U.S.C. § 924(c)(1) (Counts 2 and 6); two counts of conspiracy
with intent to distribute controlled substances in violation of 21 U.S.C. § 846 (Counts 3 and 7);
and two counts of brandishing/discharging a firearm while drug trafficking in violation of
18 U.S.C. § 924(c)(1) (Counts 4 and 8). A jury convicted defendant of all eight counts. The
district court denied Vichitvongsa’s post-verdict motion for acquittal, and sentenced him to a
total term of 1,219 months’ imprisonment. Pursuant to 18 U.S.C. § 924(c)(1)(A), (C), and (D),
his first § 924(c) offense was subject to an 84-month statutory minimum, and each subsequent
offense was subject to a 300-month statutory minimum, each running consecutively.
Accordingly, 984 months of his 1,219-month sentence arose from his § 924(c) convictions.
Vichitvongsa raises four issues on appeal in Case No. 15-5037. His primary contention is
that § 924(c) does not support four convictions when he only made two choices to use a gun (one
for each robbery), and that such convictions violate his constitutional right against double
jeopardy. Defendant raises three other issues on appeal: the sufficiency of the evidence
supporting an interstate nexus to sustain his Hobbs Act convictions; whether his multiple
conspiracy convictions violate double jeopardy; and the reasonableness of his 1,219-month
sentence.
II.
First, we address defendant’s primary issue on appeal. Section 924(c)(1)(A) provides
that “any person who, during and in relation to any crime of violence or drug trafficking crime
. . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm” shall
be subject to additional and consecutive imprisonment. Because he simultaneously used only
one firearm during the commission of two simultaneous conspiracies (Hobbs Act robbery and
drug trafficking), defendant claims he wrongly received two § 924(c) counts for each robbery.
Nos. 14-6013/15-5037 United States v. Vichitvongsa Page 5
We agree with Vichitvongsa that the application of multiple § 924(c) charges under these
circumstances is contrary to the law. Accordingly, we need not reach defendant’s double
jeopardy challenge. See Johnson, 25 F.3d at 1337.
This case presents an issue of first impression in our circuit: whether a defendant can be
convicted of violating § 924(c) twice on the sole basis of using the same firearm one time to
simultaneously further two different conspiracies. In the double jeopardy context, most of our
case law involves either the use of multiple firearms in relation to a single offense, see, e.g.,
United States v. Taylor, 13 F.3d 986, 992 (6th Cir. 1994), or multiple uses of one or more
firearms in the context of ongoing criminal activity, see, e.g., United States v. Burnette, 170 F.3d
567, 572 (6th Cir. 1999); United States v. Nabors, 901 F.2d 1351, 1357–59 (6th Cir. 1990). In
these cases, we have focused on the nature of the predicate offenses, holding that “924(c)’s unit
of prosecution is the underlying offense, not the number of firearms.” Taylor, 13 F.3d at 994;
see also United States v. Graham, 275 F.3d 490, 519–20 (6th Cir. 2001) (“We have upheld
multiple convictions and sentences under 18 U.S.C. § 924(c)(1) so long as such convictions are
based on separate predicate acts.”); Nabors, 901 F.2d at 1357–58 (“Nabors’s two convictions
under § 924(c)(1) do not each require the same proof of facts; the two predicate offenses are
distinct and require proof of facts not required by the other predicate. Thus, no problem of
multiplicity exists under Blockburger v. United States, [284 U.S. 299, 304 (1932)].”).
Upon close examination of Vichitvongsa’s conduct, this “underlying offense” case law
does not control. Instead, this is one of those limited circumstances that is guided by our en banc
decision in Johnson, where we examined “[t]he narrow question . . . [of] whether a defendant
may be sentenced to two or more consecutive terms for violating 18 U.S.C. § 924(c)(1) by
possessing firearms while simultaneously trafficking in two or more controlled substances under
21 U.S.C. § 841.” 25 F.3d at 1336 (footnote omitted). In Johnson, agents executed a search
warrant at Johnson’s home and found two firearms and two different controlled substances,
cocaine and Dilaudid (hydromorphone). Id. A jury convicted defendant of two § 924(c)
charges, one for each type of drug possessed. Id.
As here, we declined to reach the issue of “whether possessing separate controlled
substances simultaneously is one predicate offense rather than two” under Blockburger’s
Nos. 14-6013/15-5037 United States v. Vichitvongsa Page 6
multiplicity test and instead addressed the issue on statutory grounds. Id. at 1337. We focused
on the “absurdity” presented by Johnson’s simultaneous possession of two drugs serving as a
predicate for two § 924(c) charges given the statute’s ambiguity:
Our [case law] shows that . . . hair-splitting [between predicate offenses and
§ 924(c) charges] sometimes leads to absurd results, which “makes it
unreasonable to believe that the legislat[ure] intended to include the particular
act.” The absurdity is that a defendant with one firearm and one marijuana joint,
one rock of crack, and one Dilaudid would receive fifteen years . . . for the gun in
addition to the sentence on the drug charges, assuming the drugs were possessed
with intent to distribute, while a drug kingpin with ten kilos of crack and the same
firearm would only receive one five-year sentence, consecutive to his sentence for
the drug offense. Therefore, we look to other evidence of congressional intent to
determine the resolution of this case.
Id. at 1338 (emphasis added and citations omitted). Congressional intent was “not clear” as
applied to Johnson—“Congress’s intention was clear that if an offender ‘uses his gun and is
caught and convicted, he is going to jail. He should further understand that if he does so a
second time, he is going to jail for a longer time.’” Id. (citation omitted). Accordingly, we held
that the only “sensible construction” of § 924(c) in light of Johnson’s simultaneous drug
possession was that “possession of one or more firearms in conjunction with predicate offenses
involving simultaneous possession of different controlled substances should constitute only one
offense under § 924(c)(1), and the sentences under § 924(c)(1) should be for one offense only.”
Id. (citing Taylor, 13 F.3d at 994).
The rationale of Johnson applies to the instant case. Johnson took one affirmative
firearm act (possessing guns) while simultaneously committing two predicate offenses
(possessing two controlled substances), and this was not enough to substantiate two § 924(c)
convictions. Similarly, in each robbery, Vichitvongsa took one affirmative firearm act
(brandishing a handgun) while simultaneously committing two predicate offenses (conspiring to
commit Hobbs Act robbery and to traffic drugs), and this does not support two § 924(c)
convictions. Stated differently, replace conspiracy to commit Hobbs Act robbery and conspiracy
to traffic drugs with possession of cocaine and possession of Dilaudid, and we have Johnson.
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It is understandable that the district court examined Vichitvongsa’s underlying criminal
conspiracy convictions to find no issue with his multiple § 924(c) convictions for each robbery.1
After all, his predicate offenses have different elements and thus, on a surface-level, his conduct
appears to fit within our “underlying offense” case law developed in Nabors, Burnette, and
Graham. But these authorities are distinguishable. Each focused on the predicate offenses
because whether there was more than one use, carry, or possession was not at issue.
For example, in Nabors, the case the government identified at oral argument as its best
case, Nabors shot an ATF agent with a rifle during the execution of a search warrant. 901 F.2d
at 1353. A subsequent search produced the rifle, a pistol, ammunition, crack cocaine, and drug
distribution paraphernalia. Id. A jury convicted Nabors of two § 924(c) charges, one for
possessing drugs with the intent to distribute and one for shooting the ATF agent.2 Id. We
affirmed his two § 924(c) charges because the predicate offenses were “distinct and require[d]
proof of facts not required by the other predicate.” Id. at 1358. Implicit in this finding, however,
is that Nabors used firearms twice, once to shoot a federal agent on the date police executed a
search warrant, and once to “facilitate and protect drug transactions” during his possession of
cocaine. Id. at 1357–58. Accordingly, Nabors’s multiple and non-simultaneous firearm use is
distinguishable from Vichitvongsa’s singular use.
Burnette and Graham are distinguishable as well. In Burnette, the defendant used a gun
to kidnap hostages one day and to effectuate a bank robbery the next, and a jury convicted him of
two § 924(c) charges: one for kidnapping and one for bank robbery. 170 F.3d at 568, 571–72.
We affirmed those convictions, noting “the kidnapping occurred significantly before, and
independent of, the actual bank robbery, rather than being in any way simultaneous.” Id. at 572.
Graham expressly draws on Burnette by distinguishing the predicate offenses involved as
1
We are not the only court whose broad language has been read this way. See, e.g., United States v.
Cureton, 739 F.3d 1032, 1042 (7th Cir. 2014) (“Read out of context, some of our language . . . might suggest that so
long as there are different predicate offenses, like here, multiple § 924(c) convictions can result.”).
2
Under our “fortress theory” case law at that time, Nabors’s “weapons found in the apartment were in [his]
actual and constructive possession and were used to facilitate and protect drug transactions. Consequently, those
firearms [were] considered to have been used during and in relation to the drug trafficking offense of possession of
cocaine with the intent to distribute.” 901 F.2d at 1358. The Supreme Court’s decision in Bailey v. United States,
516 U.S. 137 (1995), and Congress’s response to Bailey have altered this theory’s application. See United States v.
Seymour, 739 F.3d 923, 929–30 & n.3 (6th Cir. 2014).
Nos. 14-6013/15-5037 United States v. Vichitvongsa Page 8
distinct events occurring over different time periods. 275 F.3d at 520–21. In that case, the
defendant carried one gun while tending his marijuana patches (drug trafficking), and stockpiled
several others while planning to attack various places and individuals, including several federal
officials (conspiring to commit crimes against the United States). Id. at 497–98, 520. Section
924(c) authorized two separate charges because “Graham’s predicate offenses were not
committed simultaneously, nor did they consist of identical conduct.” Id. at 521. In short, the
defendants in Burnette and Graham clearly chose to use a firearm more than once. In contrast,
Vichitvongsa chose to use a firearm once during each robbery to simultaneously further two
conspiracies.
In sum, Johnson is best understood as refining Taylor’s statement that “924(c)’s unit of
prosecution is the underlying offense, not the number of firearms.” 13 F.3d at 994. Thereafter,
and as illustrated by Burnette and Graham, we look not to the number of firearms, but rather to
the facts and circumstances driving the underlying offense. Yet, the exclusion of the number of
firearms cannot be equated with eliminating § 924(c)’s use, carry, or possess requirement.
Citing Taylor with approval, Johnson perfects Taylor’s approach in its application: courts must
look both at the offense upon which a § 924(c) charge rests and § 924(c)’s express language
linking a firearm to the predicate offense—the defendant’s use, carry, or possession. We
therefore make explicit what Johnson made implicit. In order for the government to convict a
defendant of more than one § 924(c) charge, the defendant must use, carry, or possess a
firearm—even if it is the same one—more than once.
Our sister circuits are in accord. The Tenth Circuit’s recent discussion in Rentz, 777 F.3d
at 1105, which thoroughly examined § 924(c)’s unit of prosecution in a case involving whether
the act of firing one gunshot (wounding one and killing another) resulting in two crimes of
violence (assault and murder) supported two § 924(c) charges, is persuasive. As discussed in
Rentz, the other circuits to have addressed this issue on statutory grounds are also in agreement.
Id. at 1114 (comparing Cureton, 739 F.3d at 1044, United States v. Phipps, 319 F.3d 177 (5th
Cir. 2003), United States v. Finley, 245 F.3d 199 (2d Cir. 2001), United States v. Wilson,
160 F.3d 732 (D.C. Cir. 1998), with United States v. Sandstrom, 594 F.3d 634 (8th Cir. 2010)).
Nos. 14-6013/15-5037 United States v. Vichitvongsa Page 9
We highlight just a short portion of the Tenth Circuit’s comprehensive textual analysis.
It begins by noting § 924(c)’s construction starts with the operative verbs: uses, carries, and
possesses. Id. at 1109. These verbs tell us that before § 924(c) criminalizes the furtherance of
certain crimes, one must use, carry, or possess a firearm. Id. “So reading § 924(c)(1)(A) . . . in
accord with the normal rules of statutory (and sentence) construction goes some way to suggest
that every new conviction requires a new act falling into one of those three categories.” Id. And,
given the adverbial prepositional phrases that further refine which verb § 924(c) criminalizes,
i.e., “during and in relation to any crime of violence or drug trafficking crime” and “in
furtherance of any such crime,” it follows that “each § 924(c)(1)(A) charge must involve both an
act of using, carrying, or possessing and that such an act must come during and in relation to (or
in furtherance of) a qualifying crime.” Id. at 1109–10.
Finally, the Tenth Circuit, as with others, reasoned that when interpreting criminal
statutes, “we don’t default to the most severe possible interpretation . . . but to the rule of lenity”:
The rule of lenity seeks to ensure legislatures, not prosecutors, decide the
circumstances when people may be sent to prison. It seeks to ensure, too, that if a
legislature wishes to attach criminal consequences to certain conduct—to deprive
persons of their property, liberty, or even lives—it provides fair warning. Of
course, Congress is free if it wishes to amend § 924(c)(1)(A) to state that a second
conviction doesn’t require a second use, carry, or possession. But unless and until
it does, we will not relegate men and women to prison (or to decades more time in
prison) because they did something that might—or might not—have amounted to
a violation of the law as enacted.
Id. at 1113. Therefore, “the government must prove both a use, carry, or possession, as well as a
qualifying crime.” Id. (emphasis added).
We emphasize the narrowness of our decision in light of Johnson and our prior
precedent. We do not hold that multiple crimes with one firearm occurring during “the same
criminal episode” may support only one § 924(c) charge. On this point, we have been quite
clear. See, e.g., Burnette, 170 F.3d at 572 (“It is now firmly established that the imposition of
separate consecutive sentences for multiple § 924(c) violations occurring during the same
criminal episode are lawful.”); accord Graham, 275 F.3d at 520. Whether a criminal episode
contains more than one unique and independent use, carry, or possession depends at least in part
Nos. 14-6013/15-5037 United States v. Vichitvongsa Page 10
on whether the defendant made more than one choice to use, carry, or possess a firearm.
See Rentz, 777 F.3d at 1111–12; Cureton, 739 F.3d at 1043; Phipps, 319 F.3d at 187; Finley,
245 F.3d at 207. Vichitvongsa’s conduct thus stands as one of those circumstances where
prosecutors, grand juries, and judges must closely examine both the predicate crimes and the
charged firearm use, carry, or possession to properly support multiple § 924(c) charges.
Because the district court erred in not dismissing one of defendant’s § 924(c) counts for
each robbery, and because the proper penalties are the same given § 924(c)’s mandatory term
(regardless of which two of the four counts are vacated), Taylor instructs that we remand to the
district court for the limited purpose of entering a revised judgment and sentence consistent with
this opinion. 13 F.3d at 994.
III.
Next, defendant claims that his Hobbs Act convictions lack the necessary interstate
nexus. The Hobbs Act makes it a crime to conspire to “obstruct[], delay[] or affect[] commerce
or the movement of any article or commodity in commerce, by robbery.” 18 U.S.C. § 1951(a).
To convict defendant for violating the Hobbs Act, the government was required to prove
defendant: (1) interfered with interstate commerce; and (2) conspired to commit robbery.
United States v. Turner, 272 F.3d 380, 384 (6th Cir. 2001). Vichitvongsa contends the
government failed to present sufficient proof as to the interstate nexus, and thus the district court
erred in denying his motion for judgment of acquittal. Finding no error, we affirm.
We review a district court’s denial of a motion for judgment of acquittal de novo,
assessing “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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). In so doing, we draw “all reasonable
inferences in support of the jury’s verdict and will reverse a judgment for insufficient evidence
only if the judgment is not supported by substantial and competent evidence upon the record as a
whole.” United States v. Stewart, 729 F.3d 517, 526 (6th Cir. 2013). “Substantial evidence” is
“such relevant evidence as a reasonable mind might accept to support a conclusion. It is
evidence affording a substantial basis of fact from which the fact in issue can be reasonably
Nos. 14-6013/15-5037 United States v. Vichitvongsa Page 11
inferred.” United States v. Taylor, 800 F.3d 701, 711 (6th Cir. 2015) (citation omitted). “In
sum, a defendant claiming insufficiency of the evidence bears a very heavy burden.” United
States v. Callahan, 801 F.3d 606, 616 (6th Cir. 2015).
“The Supreme Court has held that the Commerce Clause provision of the Hobbs Act is
extremely broad.” United States v. Watkins, 509 F.3d 277, 281 (6th Cir. 2007) (citing Stirone v.
United States, 361 U.S. 212, 215 (1960)). Generally, we require only a de minimis connection to
interstate commerce to satisfy the Hobbs Act. See United States v. Davis, 473 F.3d 680, 681–82
(6th Cir. 2007). Under this “low threshold . . . [, t]here is no requirement that there be an actual
effect on interstate commerce—only a realistic probability that [an offense] will have an effect
on interstate commerce.” United States v. Wang, 222 F.3d 234, 237 (6th Cir. 2000) (third
alteration in original).
In instances involving a robbery of a private citizen (the so-called “private individual
exception”), “the connection to interstate commerce is much more attenuated.” Id. at 238;
United States v. Ostrander, 411 F.3d 684, 691 (6th Cir. 2005). It cannot be “fortuitous or
speculative,” and rather “must be a substantial one.” Wang, 222 F.3d at 239–40. This would
potentially include, for example, the “victimization of a large number of individuals, or
victimization of a single individual for a very large sum,” as well as when the “defendant knew
of or was motivated by the individual victim’s connection to interstate commerce.” Id. at 239–
40.
However, we view private citizens engaged in drug crimes differently. “[I]llegal
commerce counts as commerce for Hobbs Act purposes.” United States v. Cecil, 615 F.3d 678,
691 (6th Cir. 2010) (citation omitted). More specifically, “robbing drug dealers is a proper basis
for conviction under the Hobbs Act.” United States v. Sease, 659 F.3d 519, 526 (6th Cir. 2011);
accord United States v. Lanier, 623 F. App’x 768, 775–76 (6th Cir. 2015); United States v.
Baugh, 605 F. App’x 488, 490–91 (6th Cir. 2015). Robbing drug dealers who can be
“legitimately characterized as engaged in business”—like Leggs and Crowe here—does not fall
within Wang’s “private individual exception,” and thus the government need only show a de
minimis connection to interstate commerce. Ostrander, 411 F.3d at 694.
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Our recent cases involving conspiracies to rob drug dealers confirm the district court did
not commit reversible error. Take Ostrander, for example, where the defendant conspired to rob
and kill a drug dealer. Id. at 685, 691–92. In sustaining the interstate nexus, we associated
dealing large quantities of drugs with operating a business: “[the victim] was a drug dealer; that
was his business, and indeed he was the business. He bought and sold marijuana and
cocaine. . . . [Defendant] admitted to selling large quantities of marijuana to [the victim] on
multiple occasions. . . .” Id. at 691. Combined with testimony indicating the drugs the victim
sold originated in Latin America, we found a sufficient, de minimis connection to interstate
commerce. Id. at 691–92.
In Baugh, the co-conspirators targeted a drug dealer’s house for robbery, “expect[ing] to
find ‘bricks’ of [cocaine] at his house.” 605 F. App’x at 491. For evidence that cocaine traveled
through interstate commerce, witnesses agreed that it “ain’t grown in Tennessee.” Id. In
upholding defendant’s conviction for conspiring to violate the Hobbs Act, we expressly rejected
the argument that there was no evidence that the drug dealer “actually dealt drugs. . . . [It]
makes no difference in the context of a conspiracy because it requires proof only that the scheme
would have affected commerce had it succeeded.” Id. (citing United States v. DiCarlantonio,
870 F.2d 1058, 1061 (6th Cir. 1989)).
Lanier is even more instructive. In that matter, the defendant conspired to commit three
Hobbs Act robberies. 623 F. App’x at 770. He intended to rob “active drug dealers . . . because
of their drug dealing.” Id. at 775. As two of the three drug dealers were “engaged in the drug
dealing business at the time of the robberies” (like Ostrander), Wang’s private individual
exception did not apply. Id. The Lanier court also held that the conspiracy to rob the third drug
dealer, who was incarcerated at the time, qualified because the co-conspirators targeted the
“proceeds from drug sales”—about $38,000. Id. at 772, 775.
In this case, the evidence supporting an interstate nexus for both robberies is more than
enough to conclude “any rational trier of fact could have found the essential elements . . . beyond
a reasonable doubt.” Jackson, 443 U.S. at 319. As for the LaVergne robbery, defendant and his
co-conspirators targeted the residence of a cocaine dealer, believing it contained hundreds of
thousands of dollars and several kilos of cocaine. Similarly, the target of the Smith County
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robbery testified that he trafficked in large quantities of marijuana for a period of years,
obtaining it from several parts of the country. Some of the marijuana he obtained was from
Canada, known as “BC Bud.” The government also presented evidence, through Special Agent
Matthew Chance’s testimony, that cocaine is not produced in Tennessee, originates from South
America, and usually travels into the United States via Mexico. Chance provided similar
testimony with regard to marijuana, and agreed that if someone was “trafficking BC Bud[, they]
would have to reach outside of [Tennessee] in order to obtain it.” These facts are sufficiently
analogous to Ostrander, Baugh, and Lanier.
Defendant attempts to satisfy his very heavy burden by relying upon Wang and Turner,
but these cases did not involve interstate drug trafficking. He additionally cites United States v.
Peterson, 236 F.3d 848 (7th Cir. 2001), where the Seventh Circuit found no interstate nexus in
the robbery of a drug dealer because the government only produced evidence that the drugs were
not “normally” grown in Indiana and that the robbery diverted money from drug trafficking. Id.
at 855. That was one too many inferences for the Seventh Circuit. Id. But here, the government
produced ample evidence tying Leggs’s and Crowe’s drug trafficking businesses to interstate
commerce.
Vichitvongsa also presents red herrings, noting that the victims of the robberies were all
private citizens not involved in drug trafficking, and that the drug dealers both testified that they
did not keep drugs or money at their respective houses. These points miss the mark because
“[w]hen a conspiracy is charged under the Hobbs Act, the government need only prove that the
scheme would have affected interstate commerce had it been carried out.” Turner, 272 F.3d at
384.
Finally, defendant attacks the government’s evidence for failing to account for all
sufficient alternatives to interstate commerce: Special Agent Chance “did not testify” that
producing cocaine in the United States was impossible; did not test Leggs’s cocaine so therefore
“could not speak to whether the cocaine in question was genuine or counterfeit”; and agreed
marijuana could be grown in Tennessee. It is true that the government did not account for all of
these alternatives. However, in this posture, we must draw “all reasonable inferences in support
of the jury’s verdict.” Stewart, 729 F.3d at 526.
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Given the evidence presented, any rational trier of fact could have found the conspiracies
to commit the LaVergne and Smith County robberies had a de minimis connection to interstate
commerce.
IV.
The Constitution’s Double Jeopardy Clause provides that no “person [shall] be subject
for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. It
protects the individual “against a second prosecution for the same offense after conviction or
acquittal, and against multiple punishments for the same offense.” United States v. Turner,
324 F.3d 456, 461 (6th Cir. 2003) (citation omitted). Defendant argues the district court erred in
concluding that the robberies were multiple conspiracies (as opposed to a single, continuing
conspiracy), thus violating double jeopardy. He contends he should have been charged with just
one Hobbs Act conspiracy and one drug trafficking conspiracy, not the two he received for each
robbery. We disagree.
We review de novo claims of multiplicity—“charging a single offense in more than one
count in an indictment”—in violation of double jeopardy. United States v. Swafford, 512 F.3d
833, 844 (6th Cir. 2008). In conspiracy cases, like this one, “it is the agreement which forms the
nucleus of the offense.” United States v. Sinito, 723 F.2d 1250, 1256 (6th Cir. 1983). “A single
agreement to commit several crimes constitutes one conspiracy. By the same reasoning, multiple
agreements to commit separate crimes constitute multiple conspiracies.” United States v. Broce,
488 U.S. 563, 570–71 (1989). Once a defendant “advance[s] a non-frivolous or prima facie
showing of a single conspiracy[, t]he burden then shifts to the government to show separate
conspiracies by a preponderance of the evidence.” In re Grand Jury Proceedings, 797 F.2d
1377, 1380 (6th Cir. 1986) (internal citation omitted). We review a district court’s finding that
the government showed separate conspiracies by a preponderance of the evidence for clear error.
Id. at 1380–81 (citing United States v. Jabara, 644 F.2d 574, 577 (6th Cir. 1981)).
“The ultimate question is whether the evidence shows one agreement or more than one
agreement.” Id. at 1380. We employ a five-factor “totality of the circumstances” test, as set
forth in Sinito, when evaluating such multiplicity challenges:
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The test requires the trial court, in determining whether two conspiracies arise
from a single agreement, to consider the elements of: 1) time; 2) persons acting
as co-conspirators; 3) the statutory offenses charged in the indictments; 4) the
overt acts charged by the government or any other description of the offenses
charged which indicates the nature and scope of the activity which the
government sought to punish in each case; and 5) places where the events alleged
as part of the conspiracy took place.
723 F.2d at 1256. “Where several of these factors differ between the conspiracies, the
conclusion follows that the alleged illegal conspiracies are separate and distinct offenses.” Id. at
1256–57. The scope and nature of the conduct charged—the fourth factor—is the “most
significant.” United States v. Goff, 400 F. App’x 1, 9 (6th Cir. 2010) (citing United States v.
Wheeler, 535 F.3d 446, 456 (6th Cir. 2008)).
Time. The first factor weighs in the government’s favor. The two robberies took place in
some temporal proximity, about two weeks. However, we focus on the extent to which the time
periods covered by the two indictments overlap. See Wheeler, 535 F.3d at 450–51; Sinito,
723 F.2d at 1257. Overlap in time alone is “not conclusive evidence of a single conspiracy.”
United States v. Lacey, No. 92-1186, 1993 WL 1292, at *7 (6th Cir. Jan. 5, 1993) (per curiam).
As evidence of temporal overlap, Vichitvongsa suggests he and Byrd (the one who provided him
information about Daniel Crowe’s Smith County residence) talked the evening of the LaVergne
robbery about that robbery, and then met “[t]wo or three days before” the Smith County robbery
for planning purposes. That they communicated after one robbery, and before the next, does not,
without more, establish any temporal overlap between the two robberies.
Persons. As to the second factor, there is overlap between the conspirators in the two
robberies. Some were involved in the first but not the second and vice versa, but the rest were all
the same. At the same time, however, there is no evidence linking Byrd, the person responsible
for providing the “lead” for the Smith County residence to the LaVergne robbery. At best, the
factor slightly favors defendant.
Offenses charged in the indictment. The third factor weighs in defendant’s favor. For
each robbery, the indictment charged defendant with one count of conspiring to commit Hobbs
Act robbery in violation of 18 U.S.C. § 1951, and one count of conspiracy with intent to
Nos. 14-6013/15-5037 United States v. Vichitvongsa Page 16
distribute controlled substances in violation of 21 U.S.C. § 846. The only differences in the
indictments is the place of the robbery and the kind of drugs sought.
Nature of the activity. The fourth and most significant factor weighs heavily in the
government’s favor. There is evidence of some similarity between the robberies: each targeted
money and drugs, and each were extremely violent, resulting in property damage and personal
injury. However, there is no evidence weaving the two together into a single, overarching plan
to target money and drugs, or to use violence to accomplish this goal. Rather, the evidence
confirms the robberies were acts of opportunity without overarching collaboration, with different
co-conspirators driving each. See Lanier, 623 F. App’x at 773–74.
Location. As for the last factor, this falls toward the government as well. Yes, they all
occurred in metropolitan Nashville, but the record is devoid of any other evidence connecting
these locations together other than the fact that they were “circumstantial opportunit[ies]” near
the co-conspirators’ residences. Id. at 774.
In sum, three of the five factors—including the most significant factor, the nature of the
co-conspirators’ actions—militate against finding an overarching conspiracy. See Sinito,
723 F.2d at 1256–57 (“Where several of these factors differ between the conspiracies, the
conclusion follows that the alleged illegal conspiracies are separate and distinct offenses.”).
Therefore, and upon evaluating the totality of the circumstances, the district court did not clearly
err in finding that a preponderance of the evidence supported the conclusion that the conspiracies
to commit the two robberies were separate conspiracies. Defendant’s double jeopardy claim
lacks merit.
V.
Vichitvongsa’s final claim of error in Case No. 15-5037 is that the district court’s
sentence is substantively unreasonable. His counsel conceded at oral argument that if we agreed
with his position as to the multiple § 924(c) convictions, defendant’s sentence is reasonable.
This concession resolves this issue.
Nos. 14-6013/15-5037 United States v. Vichitvongsa Page 17
VI.
Case Number 14-6013
On August 10, 2011, Metro Nashville Police Department Officer Jerre Fly observed
defendant driving a car without a seat belt and initiated a traffic stop. The car was registered to
Byrd, the car’s other passenger (and the same individual who tipped defendant off about the
Smith County robbery). As Fly approached the car, he “observed in plain view a handgun that
was sticking . . . out approximately three-fourths of the way from under the driver’s seat.” “The
barrel was facing towards the front, and the butt of the gun was facing towards the left back seat
passenger door.” Officers eventually recovered a loaded Smith & Wesson nine-millimeter
semiautomatic handgun from the car. Fly never saw defendant handle the gun.
At trial, the government introduced excerpts from two recorded phone calls made from
the Davidson County Correctional Center using a “PIN” number assigned to defendant to use
when placing prepaid or collect phone calls. An inmate identifying himself as “Nelly” placed
both calls. During the first, the inmate indicated he was charged with being a felon in possession
of a gun. When asked “what gun [he] g[o]t caught with,” Nelly responded, “The Smitty.” On
the second call, Nelly stated he was “pulled over,” “they ain’t let me go this time,” “they caught
me,” and “they caught me with my burner.”
Two witnesses familiar with defendant identified the voice on the recordings as
Vichitvongsa’s. Both testified that he went by the nickname of “Nelly.” They also stated that
“burner” and “Smitty” are common references to handguns, with the latter referring to a Smith
& Wesson handgun.
A jury convicted Vichitvongsa of being a felon in possession of a firearm in violation of
18 U.S.C. §§ 922(g)(1) and 924. Following the verdict, he moved for a judgment of acquittal,
arguing the government failed to prove beyond a reasonable doubt that he possessed a firearm.
The district court denied this motion, and subsequently sentenced him to 63 months’
imprisonment.
Nos. 14-6013/15-5037 United States v. Vichitvongsa Page 18
To convict defendant of being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g), the government was required to prove: (1) defendant was a convicted felon;
(2) defendant possessed a firearm; and (3) the firearm traveled in or affected interstate or foreign
commerce. See United States v. Walker, 734 F.3d 451, 455 (6th Cir. 2013). Defendant only
claims that the government failed to present sufficient evidence that he possessed a firearm. The
standard of review for this claim is the same as for his sufficiency of the evidence challenge to
his Hobbs Act convictions; we assess “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.” Jackson, 443 U.S. at 319.
The government may establish possession by actual or constructive possession of a
firearm. United States v. Campbell, 549 F.3d 364, 374 (6th Cir. 2008). “[T]he line of
demarcation between ‘actual’ and ‘constructive’ possession is not analytically crisp.” Walker,
734 F.3d at 456. “Actual possession requires that a defendant have immediate possession or
control of the firearm, whereas constructive possession exists when the defendant ‘does not have
possession but instead knowingly has the power and intention at a given time to exercise
dominion and control over an object, either directly or through others.’” Campbell, 549 F.3d at
374 (citation omitted). “The element of possession can be proven by either direct or
circumstantial evidence. Circumstantial evidence alone is sufficient to sustain a conviction.”
United States v. Garcia, 758 F.3d 714, 718 (6th Cir. 2014) (citations omitted).
Here, and at a minimum, defendant constructively possessed a firearm. Fly observed a
firearm “sticking . . . out” from under the driver’s seat of the car defendant was driving. As
defendant points out, “[p]resence alone near a gun . . . does not show the requisite knowledge,
power, or intention to exercise control over the gun to prove constructive possession.” United
States v. Arnold, 486 F.3d 177, 183 (6th Cir. 2007) (en banc); accord United States v. Newsom,
452 F.3d 593, 609 (6th Cir. 2006).
“But that is not what we have here. Here we have other incriminating evidence, coupled
with presence, that serves to tip the scale in favor of sufficiency.” Arnold, 486 F.3d at 183
(alterations, citations, and brackets omitted). “Other incriminating evidence”—a “connection
with a gun, proof of motive, a gesture implying control, evasive conduct, or a statement
Nos. 14-6013/15-5037 United States v. Vichitvongsa Page 19
indicating involvement in an enterprise—coupled with proximity may suffice.” Campbell,
549 F.3d at 374 (citations and internal quotation marks omitted). A defendant’s statement of
ownership is especially incriminating. See, e.g., Newsom, 452 F.3d at 609–10 (statement by
defendant that he “had that gun” found within an arm’s reach under his seat, among others,
constituted sufficient evidence of possession); United States v. Thomas, 497 F.2d 1149, 1150
(6th Cir. 1974) (per curiam) (“[I]t is not unreasonable to infer Thomas’ possession of the gun
from the fact[] that he . . . call[ed] it ‘my gun.’”); United States v. Curruthers, 511 F. App’x 456,
460 (6th Cir. 2013) (jailhouse call by defendant stating “they found that shit in the car” rationally
supported an inference that defendant possessed a firearm).
Such “other incriminating evidence” takes the form of two jailhouse phone calls, where
an individual, using defendant’s calling PIN number, referring to himself by one of defendant’s
nicknames, and identified as defendant by two witnesses familiar with his voice, stated that
police “pulled [him] over” and “caught [him]” with a gun: “The Smitty” and “my burner.” The
government presented evidence that “Smitty” and “burner” are common references to handguns,
and that a “Smitty” refers to a Smith & Wesson handgun—the same model gun defendant’s
indictment charged him with possessing. This evidence more than adequately constitutes “other
incriminating evidence.”
Latching onto the fact that the firearm was also in close proximity to the vehicle’s other
occupant (and owner), Vichitvongsa contends United States v. Beverly, 750 F.2d 34 (6th Cir.
1984), dictates a different result. There we found constructive possession to be lacking where
police officers found the defendant and another individual close to a wastebasket containing
guns, one of which had the defendant’s fingerprints. Id. at 36–37. As an en banc court, we have
subsequently distinguished Beverly as a proximity-only case without any evidence “connect[ing]
the gun to the defendant.” Arnold, 486 F.3d at 184. We filled the “evidentiary gap” in Arnold
with statements by the victim connecting the gun to the defendant. Id. at 184–85. Likewise,
defendant’s own statements connecting him to the gun distinguish Beverly.
Finally, defendant argues that the phrases “Smitty” and “burner” were “insufficient proof
that [he] possessed the ‘relevant gun’ at the ‘relevant time.’” He contends, therefore, that this
case is materially distinct from Arnold where “the witness gave a detailed description of the
Nos. 14-6013/15-5037 United States v. Vichitvongsa Page 20
weapon.” Defendant’s attempt to distinguish this case from Arnold is a curious one, as there the
detailed description was that of a “black handgun” that could be “cocked” by “pull[ing] back the
slide.” 486 F.3d at 180. Viewing the evidence in the light most favorable to the prosecution, we
had no problem concluding that any rational trier of fact could have found Arnold possessed a
firearm due to this “eyewitness testimony describing a firearm actually possessed by the
defendant that matches a firearm later recovered by the police.” Id. at 183. Here, defendant’s
jailhouse statements mirror what he was alleged to have done, tracking his arrest (he was pulled
over), his charge (felon in possession), and the facts supporting his charge (being caught with the
Smitty). Most especially, defendant admitted to being caught with his gun, “my burner.” These
circumstances stand on par with the “other incriminating evidence” in Arnold.
In conclusion, Vichitvongsa has failed to meet the very heavy burden of showing that no
rational trier of fact could have found he possessed a firearm beyond a reasonable doubt. We
affirm.
VII.
For these reasons, we affirm the district court in Case No. 14-6013. We reverse the
district court in Case No. 15-5037, vacate two of defendant’s § 924(c) convictions, and remand
for entry of a revised judgment and sentence. We affirm in all other respects.