Appeals from the United States District Court for the District of Idaho. D.C. No. CR-95-00015-2-EJL, D.C. No. CR-92-00021-1-EJL. Edward J. Lodge, District Judge, Presiding. Original Opinion Previously Reported at:,.
Before: Arthur L. Alarcon, William A. Norris and Andrew J. Kleinfeld, Circuit Judges. Opinion by Judge Alarcon.
Order, AMENDED OPINION, AND DENIAL OF PETITION FOR REHEARING
Mark Edward McGrath and Stephen Wayne Atcheson were found guilty of conspiracy to commit robbery, attempted robbery, extortion, and attempted extortion in violation of the Hobbs Act. The jury also found McGrath and Atcheson guilty of violating the Travel Act, using a firearm during a crime of violence, possessing an unregistered firearm, and being felons in possession of firearms.
McGrath seeks reversal of the judgment of conviction on the following grounds:
One. The district court lacked subject matter jurisdiction under the Hobbs Act, 18 U.S.C. § 1951(a).
Two. The district court erroneously instructed the jury that the defendants could be found guilty of violating the Hobbs Act if their acts had a probable or potential effect on commerce.
Three. The district court erroneously imposed consecutive sentences for the Hobbs Act violations and firearms violations.
Atcheson joins McGrath in his first and third contentions. He also seeks reversal of the judgment of conviction on the following grounds:
One. The district court erred in denying his motion for a separate trial and his motion for mistrial.
Two. The prosecution improperly vouched for the credibility of government witnesses and referred to evidence not in the record during closing argument.
Three. The pretrial identification procedure was impermissibly tainted.
Four. The district court erroneously imposed consecutive sentences for the use of two firearms during the crimes.
For the reasons stated below we remand to the district court for the purpose of resentencing Atcheson on counts 11 and 12 for violation of 18 U.S.C. § 924(c). We affirm the remainder of the judgment.
McGrath, Atcheson, and an unindicted co-conspirator, Teddy Pinkerton, formulated a scheme to make some "easy money" by taking hostages, stealing their credit and automated teller machine ("ATM") cards, and then using the cards to obtain money through ATM machines. To implement this plan they traveled from their homes in Salt Lake City, Utah to Pocatello, Idaho on July 28, 1994. Once in Pocatello, McGrath, using the alias of Jerry Timberman, posed as a prospective buyer for a vacant building. McGrath contacted various business men and women in the Pocatello area, ostensibly for the purpose of obtaining bids and estimates on the cost of remodeling the building and supplying office equipment. He arranged to meet with these persons at the vacant building the next day.
As the individuals contacted by McGrath arrived for their appointments on July 29, 1994, the co-conspirators took them hostage, using a sawed-off shotgun and a .22 caliber semi-automatic pistol. The co-conspirators took the hostages' wallets, credit cards, ATM cards, cash, jewelry and other personal items, and demanded their personal identification numbers for their credit and ATM cards. The hostages were ordered to remove their clothing and to crawl into a vault where their feet and hands were bound with duct tape. Throughout this ordeal, the co-conspirators threatened to kill the hostages or to injure their families.
Many of the credit and ATM cards which the co-conspirators took from the hostages were from out-of-state financial institutions. After taking the credit and ATM cards, the co-conspirators called the financial institutions, apparently to check the bank account balances and credit limits associated with the cards. The co-conspirators attempted to obtain money with the credit and ATM cards. Their efforts proved fruitless.
On May 11, 1995, the Government filed a fifteen count superseding indictment against McGrath and Atcheson in the United States District Court for the District of Idaho. On June 7, 1995, a jury convicted McGrath and Atcheson of the following crimes: count 1, conspiracy to violate the Hobbs Act; count 2, violation of the Interstate and Foreign Travel Act; counts 3-10, violation of the Hobbs Act in relation to each of eight victims; counts 11 and 12, use of a firearm during and in relation to a crime of violence; count 13, possession of an unregistered firearm; and counts 14-15, being a felon in possession of a firearm. McGrath and Atcheson were sentenced on August 31, 1995. They timely appealed the judgment of conviction and the sentence imposed by the district court.
McGrath and Atcheson contend that the district court lacked jurisdiction under the Hobbs Act because the Government did not demonstrate a sufficient connection between their acts and interstate commerce. The elements of a Hobbs Act violation are extortion and a nexus between a defendant's acts and interstate commerce. Stirone v. United States, 361 U.S. 212, 218, 4 L. Ed. 2d 252, 80 S. Ct. 270 (1960). Because the Government bears the burden of proving each element of the crime, McGrath and Atcheson were not required to challenge the sufficiency of the Government's evidence of a nexus between their acts and interstate commerce before the trial court. See United States v. James, 987 F.2d 648, 651-52 (9th Cir. 1993) (bank robbery conviction reversed where government failed to present any evidence that bank was insured by the FDIC). This court must reverse the conviction if, reviewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found that there was a sufficient nexus between McGrath and Atcheson's acts and interstate commerce. Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979).
We have held that the Government need prove that a defendant's acts had only a de minimis effect on interstate commerce to support a Hobbs Act violation. United States v. Phillips, 577 F.2d 495, 501 (9th Cir.), cert. denied, 439 U.S. 831, 58 L. Ed. 2d 125, 99 S. Ct. 107 (1978); United States v. Zemek, 634 F.2d 1159, 1173 n.20 (9th Cir. 1980), cert. denied, 452 U.S. 905 (1981). McGrath and Atcheson contend that the United States Supreme Court ...