United States v. Emmanuel Chaplain , 864 F.3d 853 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-2985
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Emmanuel Chaplain
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: May 12, 2017
Filed: July 21, 2017
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Before RILEY, BEAM, and SHEPHERD, Circuit Judges.
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BEAM, Circuit Judge.
Emmanuel Chaplain was convicted of seven counts of interfering with
commerce by means of robbery (Hobbs Act robbery) in violation of 18 U.S.C. § 1951,
three counts of brandishing a firearm during a crime of violence in violation of 18
U.S.C. § 924(c)(1)(A) and (C), and one count of being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g) and 924(a)(2), and sentenced to 852
months' imprisonment. He appeals, challenging the sufficiency of the evidence and
the district court's1 jury instruction for Hobbs Act robbery. For the reasons discussed
below, we affirm.
I. BACKGROUND
Chaplain and Shane Seizys were involved in a spree of robberies in Omaha
from June 19, 2014, until July 16, 2014, when they were arrested. During six of the
eight violent robberies, both Chaplain and Seizys were wearing electric-monitoring
ankle bracelets that tracked their location within 15 meters of each robbery location.
Fifteen meters is the range of accuracy for the GPS unit. On June 19, 2014, Thomas
Jones-Ross drove Chaplain and Seizys to a Jiffy Lube and parked several blocks
away. Chaplain and Seizys entered the business with handguns and wore bandanas
covering their faces. One man put a gun to the manager's face and ordered him to
open the cash register while the other had a gun pointed at a customer. The manager
gave them $850. They demanded that he open the safe, which was empty. The
customer in the business at the time of the robbery described the robbers as two
African-American males. The ankle bracelets assigned to Chaplain and Seizys placed
them within 15 meters of the Jiffy Lube at the time of the robbery. Jiffy Lube, a
nationwide franchise that receives its products from Pennsylvania, had to close for
90 minutes due to the police investigation.
Jones-Ross then drove Chaplain and Seizys to Jensen Tire & Auto. They
arrived a little before 6 p.m., after the store had closed and the cash had been
deposited into a safe. Chaplain and Seizys entered the business with bandanas over
their faces, put a gun to an employee's face, and asked about the safe. When the
employee stated that he did not know where the safe was, Chaplain and Seizys
1
The Honorable Laurie Smith Camp, Chief Judge, United States District Court
for the District of Nebraska.
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confronted the manager. The manager opened the cash registers, but they were
empty. They took the manager to his office and told him that they would shoot him
if he did not give them the money from the safe. The manager was unable to open the
safe. Both Chaplain's and Seizys's ankle bracelets placed them within 15 meters of
the Jensen Tire & Auto at the time of the attempted robbery. Jones-Ross next drove
Chaplain and Seizys to another Jiffy Lube. They entered the business with their faces
covered, one by a bandana and the other by an "Airsoft" mask, and brandished a gun.
They put the gun to the back of an employee's head and ordered the employee to open
the cash register. They took $220 from the register. The safe was empty. The
business was closed for the rest of the day, and the customers at the business at the
time of the robbery were not charged for the services they received. Chaplain's and
Seizys's ankle bracelets placed them within 15 meters of the Jiffy Lube at the time of
the robbery.
On June 23, 2014, Jones-Ross again acted as the getaway driver, driving his
mother's vehicle, for Chaplain and Seizys to commit three more robberies. Like the
previous three robberies, Chaplain and Seizys had guns and used bandanas and masks
to cover their faces. At 6 p.m. Chaplain and Seizys entered a Subway restaurant
where twelve customers were dining, brandished their guns, and ordered everyone to
get on the ground. One of them demanded that an employee open the cash register
and safe while the other kept his gun pointed at another employee. They grabbed
between $400 and $500 at this location. The restaurant was closed for the remainder
of the evening, losing six operating hours. The robbery was captured on surveillance
video, and both Chaplain's and Seizys's ankle bracelets placed them within 15 meters
of the Subway restaurant at the time of the robbery.
Jones-Ross then drove Chaplain and Seizys to an O'Reilly Auto Parts store. As
Chaplain and Seizys entered the store with their guns drawn, a customer was exiting
the store. A customer inside the store stated that one robber wore a blue "NAVY"
hoodie and a blue bandana. Chaplain and Seizys took between $100 and $150 from
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the cash register. Because the safe was on a time release, it could not be opened.
Inventory for O'Reilly Auto Parts comes from distribution centers in Iowa, Missouri,
and Minnesota. It receives daily shipments from Iowa. The store was closed for a
short period of time during the police investigation but reopened that evening for an
hour. Again, ankle bracelets assigned to Chaplain and Seizys placed them within 15
meters of the store at the time of the robbery.
From O'Reilly Auto Parts, Jones-Ross drove Chaplain and Seizys to a Kum &
Go gas and convenience store. Chaplain and Seizys entered the store with guns
drawn and their faces concealed with bandanas. One robber forced the clerk to open
the cash registers while the other stood by the front door. They took $800 from the
registers and demanded that the employees open the safe, but neither employee had
the combination. The convenience store was closed for nearly two hours during the
police investigation. A customer who was purchasing gas at the time of the robbery
saw two men with bandanas over their faces enter the Kum & Go with guns. The
customer left the store and noticed Jones-Ross's vehicle parked nearby. He reported
the vehicle's license plate number to the police. Jones-Ross's vehicle stalled shortly
after Chaplain and Seizys returned from the Kum & Go. All three men fled from the
vehicle. The ankle bracelets placed Chaplain and Seizys within 15 meters of the Kum
& Go at the time of the robbery and within 15 meters of the abandoned vehicle.
Omaha police were called to the scene of the abandoned vehicle. It had a
fictitious license plate taped over the front license plate. The fictitious plate was the
same as the license place number called in after the Kum & Go robbery. Police found
$31, coins, duct tape, a black bandana, black cloth gloves, a blue sweatshirt, a black
face mask, and a box of latex or vinyl gloves. DNA was extracted from the black
bandana and analyzed at the Nebraska State Patrol crime laboratory. Chaplain was
the main contributor of DNA to the bandana. The blue sweatshirt in the car had the
word "NAVY" on it, which matched the description given by the customer at O'Reilly
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Auto Parts and matched the sweatshirt seen in the Subway and Kum & Go robberies.
Jones-Ross's girlfriend identified the sweatshirt as belonging to Seizys.
On July 8, 2014, the Nebraska State Department of Corrections received notice
that Chaplain had removed his ankle bracelet. He was placed on abscond status, and
a warrant was issued for his arrest. On July 16, 2014, three men entered GameStop
carrying a yellow and black bag and wearing hoodies with the hoods pulled over their
heads, bandanas covering their faces, and gloves. The men ordered the clerk to open
the registers and safe. She opened the registers, but the safe was on a ten-minute
delay. The men held a customer at gunpoint and told him to empty his pockets. The
men escaped with approximately $1,400 to $1,500, and as they were leaving the store,
the last robber took Xbox One game cases from the display wall. The store
surveillance camera captured the robbery. The store was closed for the remainder of
the evening, losing three hours of business.
Less than 30 minutes later, two men wearing bandanas entered a Kentucky
Fried Chicken (KFC) restaurant and demanded money. Employees emptied the
registers. The two men took the money, ran between two houses, and met at a white
Ford Mustang parked on the street. A witness saw three men at the trunk of a white
Mustang changing clothes. KFC lost three hours of business as a result of the
robbery. Inventory for the restaurant is shipped from Kansas City to Omaha twice a
week. Officers arrived at the KFC shortly thereafter and searched the area. Police
found three black males matching the description of the suspects walking together.
Chaplain ran as the police car approached. Dilang Dat and Seizys were taken into
custody. Dat had over $200 and the key to the white Mustang in his pocket. Seizys
had approximately $240 in his pocket. Chaplain was later apprehended. Officers
took Chaplain, Seizys, and Dat to a KFC parking lot. The GameStop clerk identified
Chaplain by his voice and skin tone. A KFC customer also identified Chaplain by his
voice. Police inventoried the white Mustang and found the following: a fictitious
rear license plate, multiple Xbox One game display cases, a red bandana, a black and
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white bandana, Seizys's learner's permit, nylon or latex gloves, a nylon holster, and
a yellow and black bag matching the description of the bag used in the GameStop
robbery. Chaplain's fingerprints were on the Xbox One game display cases, and the
bag contained $150.
Chaplain, along with Seizys, Dat, and Jones-Ross, were indicted by a grand
jury sitting in Nebraska. Chaplain was charged with eight counts of interfering with
commerce by means of robbery, four counts of brandishing a firearm during a crime
of violence, and one count of being a felon in possession of a firearm. Seizys, Dat,
and Jones-Ross all entered guilty pleas pursuant to plea agreements. Chaplain pled
not guilty and went to trial on March 14, 2016. At the conclusion of the government's
evidence, Chaplain moved for acquittal. The court denied the motion, and the jury
convicted Chaplain of seven Hobbs Act robberies, three counts of brandishing a
firearm, and one count of felon in possession of a firearm. The jury acquitted
Chaplain of Hobbs Act robbery for the Jensen Tire & Auto incident and thus, was
instructed it need not address the brandishing charge related to that robbery.
Chaplain was sentenced to 168 months' imprisonment for each of his Hobbs Act
robberies to run concurrently and 120 months' imprisonment for his felon in
possession of a firearm conviction to run concurrently, along with consecutive
sentences of 7 years, 25 years, and 25 years for each of the brandishing charges, for
a total of 852 months' imprisonment. Chaplain appeals, challenging the sufficiency
of the evidence and the jury instruction for the Hobbs Act robberies.
II. DISCUSSION
A. Sufficiency of the Evidence
Chaplain argues that the evidence presented at trial was insufficient to support
his convictions beyond a reasonable doubt. Our standard of review for a challenge
to the sufficiency of the evidence and a denial of a motion for a judgment of acquittal
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is the same, de novo. United States v. Adejumo, 772 F.3d 513, 522 (8th Cir. 2014).
We view the evidence "in a light most favorable to the verdict and accept[] all
reasonable inferences supporting the verdict." United States v. Bell, 761 F.3d 900,
906 (8th Cir. 2014) (quoting United States v. Colton, 742 F.3d 345, 348 (8th Cir.
2014) (per curiam)). "[W]e reverse 'only if no reasonable jury could have found the
defendant guilty beyond a reasonable doubt.'" United States v. Morales, 445 F.3d
1081, 1084 (8th Cir. 2006) (quoting United States v. Howard, 413 F.3d 861, 864 (8th
Cir. 2005)).
1. Hobbs Act Robberies
A person commits a Hobbs Act robbery if he "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." 18 U.S.C.
§ 1951(a). GPS tracking through Chaplain's ankle bracelet, eye witness testimony,
physical evidence, and video surveillance provide overwhelming evidence to
establish Chaplain's involvement in each robbery, and Chaplain does not explicitly
contest this evidence. Chaplain argues only that the government failed to show that
the robberies affected interstate commerce. We disagree.
"Commerce" is defined as
commerce within the District of Columbia, or any Territory or
Possession of the United States; all commerce between any point in a
State, Territory, Possession, or the District of Columbia and any point
outside thereof; all commence between points within the same State
through any place outside such State; and all other commerce over
which the United States has jurisdiction.
Id. § 1951(b)(3). Commerce has been defined very broadly in caselaw. The statute
"in no way exclude[s] prosecutions for . . . local robberies, so long as they satisfy the
requirement that commerce or the movement of any article or commodity in
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commerce is obstructed, delayed, or affected." United States v. Farmer, 73 F.3d 836,
843 (8th Cir. 1996). "When a business that sells goods manufactured outside the state
is robbed, interstate commerce is usually sufficiently affected for" Hobbs Act
robbery. United States v. Quigley, 53 F.3d 909, 910 (8th Cir. 1995). Where a
business is forced to close for a period of time, a court is especially likely to find that
the robbery affected interstate commerce. United States v. Mann, 701 F.3d 274, 295
(8th Cir. 2012). In United States v. Davis, 30 F.3d 613 (5th Cir. 1994), the court held
that the evidence was sufficient to support a finding of Hobbs Act robbery where the
"robberies caused the interruption of commerce in all four gas stations dealing in out-
of-state goods, resulting from their temporary closure." Id. at 615. The commerce
element is also satisfied "when a robbery depletes the assets of a business engaged
in interstate commerce." United States v. House, 825 F.3d 381, 386 (8th Cir. 2016),
cert. denied, 137 S. Ct. 1124 (2017). Even the robbery or attempted robbery of a drug
dealer of drugs or drug proceeds satisfies the commerce element of Hobbs Act
robbery. Taylor v. United States, 136 S. Ct. 2074, 2077-78 (2016).
Here, every business involved in Chaplain's robbery spree was forced to close
temporarily. The first Jiffy Lube was closed for 90 minutes, the second Jiffy Lube
was closed for the remainder of the day, Subway was closed for the remainder of the
day and lost six hours of business, O'Reilly Auto Parts was forced to close for a
period of time, Kum & Go was closed for nearly two hours, GameStop was closed for
the remainder of the evening and lost three hours of business, and KFC was forced
to close three hours early. Moreover, each business sold out-of-state goods. Jiffy
Lube is a franchise that receives products from warehouses in Pennsylvania. Subway
is a chain restaurant that belongs to a larger interstate chain of stores. O'Reilly Auto
Parts receives inventory from Iowa, Missouri, and Minnesota. Kum & Go has stores
in both Nebraska and Iowa. GameStop is a national chain that receives products from
across the country. KFC is part of a national chain of restaurants that receives its
food from Kansas. Thus, there is sufficient evidence to demonstrate that Chaplain's
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actions obstructed, delayed, or affected commerce in some way or to some degree
such that Chaplain's convictions under the Hobbs Act were appropriate.
2. Firearms Charges
Chaplain was convicted of three counts of brandishing a firearm during a crime
of violence in violation of 18 U.S.C. § 924(c)(1)(A) and (C). He states that there was
insufficient evidence to support these convictions but fails to explain this argument
in his brief on appeal. "Because the brief does not support this assertion with any
argument, this court deems the issue abandoned." United States v. Aldridge, 561 F.3d
759, 765 (8th Cir. 2009).
B. Jury Instructions
Chaplain also argues that the district court erred by failing to put the word
"interstate" before the word "commerce" in its jury instructions for the Hobbs Act
charges. We review the district court's jury instructions for an abuse of discretion.
United States v. Lalley, 257 F.3d 751, 755 (8th Cir. 2001). Here, again, Chaplain has
abandoned this issue. Although Chaplain mentions the district court's alleged jury
instruction error in his Statement of Issues in his brief, he never actually argues this
point. Federal Rule of Appellate Procedure 28(a)(8)(A) requires that the argument
in the brief set forth the "appellant's contentions and the reasons for them." If "the
brief does not support [the party's] assertion with any argument, this court deems the
issue abandoned." Aldridge, 561 F.3d at 765.
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III. CONCLUSION
The judgment of the district court is affirmed.2
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2
The court did not consider Chaplain's two pro se documents since he was
represented by counsel. United States v. Jones, 698 F.3d 1048, 1051-52 (8th Cir.
2012).
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