United States v. Ware

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-4575

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

LUTHER ALAN WARE,

Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-05-17)

Argued: March 15, 2007 Decided: April 18, 2007

Before TRAXLER, KING, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Charles Henry Harp, II, Lexington, North Carolina, for
Appellant. Lawrence Patrick Auld, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Anna
Mills Wagoner, United States Attorney, Douglas Cannon, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Luther Alan Ware appeals from his three convictions in the

Middle District of North Carolina for unlawful interference with

commerce by robbery, in violation of the Hobbs Act, 18 U.S.C. §

1951 (Count One); knowingly carrying and using, by discharging, a

firearm, during and in relation to the Hobbs Act offense charged in

Count One, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) (Count

Two); and felonious possession of a firearm, in violation of 18

U.S.C. §§ 922(g)(1) and 924(a)(2) (Count Three). With respect to

the two Hobbs Act-related charges, Ware contends that the district

court erred in denying his pre-trial motion to dismiss Counts One

and Two, in denying his motions for judgment of acquittal on Count

One, and in rejecting a proposed jury instruction. On all three

counts, Ware also asserts (for the first time in this appeal) that

the court improperly admitted evidence relating to his earlier

felony convictions. As explained below, we reject his contentions

and affirm.

I.

A.

On December 3, 2004, a man wearing a ski mask — later

identified as Ware — entered Ronnie Stokes’s insurance agency on

West Broad Avenue in High Point, North Carolina. Ware produced a

handgun and ordered Stokes to hang up the phone. Ware then removed

2
cash, money orders, checks, credit card payments, debit card

payments, and payment vouchers from the agency’s cash drawer, and

stuffed them into his pockets. Stokes testified that the drawer

contained approximately $3,000 in checks, money orders, and

receipts, including between $100 and $195 in cash.

After demanding that Stokes hand over his wallet, Ware ordered

Stokes into the bathroom. As Stokes headed toward the bathroom, he

heard Ware’s gun click. In response, Stokes simultaneously grabbed

Ware’s jacket and the firearm, which discharged. Fortunately,

neither Stokes nor Ware was hit as a result, but a physical

struggle ensued, during which Stokes removed Ware’s mask, revealing

his face. As they wrestled to the floor, the handgun again

discharged, but again neither man was hit. During the struggle,

Stokes’s head was slammed against a concrete wall in the vicinity

of the bathroom. Temporarily dazed by the blow, Stokes regained

consciousness as Ware was leaving the insurance agency.

Once back on his feet, Stokes ran outside and encountered the

owner of a neighboring store, Anthony McQueen, and a passer-by,

Diallo Crawford. After briefly explaining the situation to the two

men, Stokes pointed to Ware, who was moving on foot toward Main

Street in High Point. McQueen promptly called the police, while

Crawford followed Ware on foot. Stokes then got into his car and

circled the block in an effort to intercept Ware. At the

intersection of Main Street and Kivett Drive, Stokes saw Ware and

3
demanded that he drop everything he had taken from the Stokes

agency. In response, Ware first motioned for Stokes to approach,

but then again began to run. A chase ensued in which Stokes and

Crawford followed Ware around various buildings and parking lots,

until Ware stopped behind a Wachovia Bank building. Again, Stokes

demanded that Ware release the items he had stolen from the

insurance agency. Ware then pulled Stokes’s wallet from his pocket

and threw it between some parked cars. As Stokes retrieved his

wallet, Ware ran down Kivett Drive toward Main Street. Still

pursuing Ware, Stokes got back into his automobile and pulled onto

Wrenn Street, where he saw an unmarked police vehicle and alerted

the officer to where Ware was headed. Ultimately, High Point

police officers apprehended Ware on Main Street, where they

recovered a semiautomatic handgun from his pocket, plus $103 in

cash. Stokes later identified Ware, who was in the police cruiser,

as the gunman in the ski mask who had robbed the insurance agency.

B.

On January 31, 2005, the grand jury in the Middle District of

North Carolina returned an indictment against Ware, charging him

with the three offenses at issue in this appeal. Ware filed a pre-

trial motion seeking dismissal of Counts One and Two, maintaining

that his alleged conduct did not fall within the ambit of the Hobbs

Act. At oral argument conducted on May 4, 2005, the district court

denied, from the bench, Ware’s motion to dismiss. A two-day jury

4
trial was held on May 10-11, 2005, and, prior to the presentation

of evidence, the following stipulations were made by the parties:

(1) “that the Defendant is, in fact, a convicted felon unable to

possess a firearm,”1 (2) “that the firearm retrieved in this case

traveled in interstate commerce,” (3) “that the handgun was test-

fired and found to be in working order,” and (4) “that the

cartridges that were found at the scene were, in fact, fired by the

gun that was recovered.” J.A. 18.2 As presented to the jury, the

court struck from the stipulations the nature of Ware’s relevant

prior felony conviction, in order to minimize any possible

prejudice.

At trial, Stokes testified about the robbery of his agency and

the ensuing chase through the streets of High Point, and McQueen

and Crawford corroborated Stokes’s testimony. Supporting witnesses

from the High Point Police testified for the prosecution. At the

close of the prosecution’s case-in-chief, Ware moved for judgment

of acquittal on Count One, pursuant to Rule 29 of the Federal Rules

of Criminal Procedure, asserting that the evidence failed to

establish that “this incident interfered, obstructed or delayed the

interstate commerce in [Stokes’s] business,” as required under the

1
The predicate felony conviction for Count Three is Ware’s
August 1995 conviction in the Superior Court of Guilford County,
North Carolina, for the offense of robbery with a dangerous weapon.
2
Our citations to “J.A. ” refer to the contents of the
Joint Appendix filed by the parties in this appeal.

5
Hobbs Act. J.A. 181.3 The court denied Ware’s Rule 29 motion,

however, and he proceeded to present his defense. Maintaining his

innocence, Ware testified on his own behalf, asserting that the

gunman who had robbed Stokes’s insurance agency was actually a man

named John Wesley Zimmerman.

During his direct examination at trial, Ware testified that he

had been previously convicted of armed robbery in 1984 and also

“went to prison in ‘95 for armed robbery with a dangerous weapon.”

J.A. 197. Ware apparently revealed these convictions in an effort

to show the jury his past willingness to accept criminal

responsibility when he was guilty. Specifically, Ware testified

that:

I took a plea bargain then because I knew I had done
wrong. So I asked for a plea and they gave me a plea
bargain. This here I didn’t take no plea bargain because
I hadn’t done nothing wrong. I didn’t rob nobody, so I
didn’t want no plea.

3
Pursuant to §1951(a) of Title 18, the Hobbs Act provides, in
pertinent part:
Whoever in any way or degree obstructs, delays, or
affects commerce or the movement of any article or
commodity in commerce, by robbery . . . shall be fined .
. . or imprisoned . . . or both.
See 18 U.S.C. § 1951(a). Although the Hobbs Act refers
specifically only to “commerce,” it is well-established that it is
“interstate commerce” that the Act was drawn to protect. See
Stirone v. United States, 361 U.S. 212, 215 (1960) (concluding that
Hobbs Act “speaks in broad language, manifesting a purpose to use
all the constitutional power Congress has to punish interference
with interstate commerce by extortion, robbery or physical
violence”).

6
J.A. 197. Ware also testified that he had pleaded guilty to the

1984 armed robbery offense “because I knew I had done wrong.” Id.

On cross-examination, the prosecution elicited additional testimony

from Ware that he had been convicted, after pleas of guilty, of

several other armed robbery offenses.

After all the evidence had been presented, Ware renewed his

Rule 29 motion, which the trial court again denied. Ware then

presented his request for jury instructions. In pertinent part,

he requested an instruction that a violation of the Hobbs Act does

not occur unless the alleged criminal conduct has substantially

affected interstate commerce. Concluding that Ware’s proposed

instruction contravened controlling precedent, the court denied

Ware’s request “to the extent that it is contrary to Fourth Circuit

law.” J.A. 244. On May 11, 2005, the jury returned a verdict of

guilty on all three counts.

II.

A.

On appeal, Ware first challenges his convictions on the Hobbs

Act-related offenses in Counts One and Two. A Hobbs Act violation

is comprised, in relevant part, of only two elements: (1) a robbery

as defined in 18 U.S.C. § 1951(b)(1); and (2) an effect on

interstate commerce. See United States v. Williams, 342 F.3d 350,

353 (4th Cir. 2003). Specifically, the Act “does not require proof

that a defendant intended to affect commerce or that the effect on

7
commerce was certain; it is enough that such an effect was the

natural, probable consequence of the defendant’s actions.” Id. at

354 (citing United States v. Spagnolo, 546 F.2d 1117, 1118-19 (4th

Cir. 1976)). Ware contends that, in this situation, there was an

insufficient nexus to interstate commerce for the robbery of

Stokes’s insurance agency to fall within the ambit of the Hobbs

Act. Accordingly, he asserts that the trial court erred in denying

his motion to dismiss Counts One and Two, his motions for judgment

of acquittal on Count One, and his request for a jury instruction

requiring proof that the robbery “substantially” affected

interstate commerce.

We review “the district court’s factual findings on a motion

to dismiss an indictment for clear error, but we review its legal

conclusions de novo.” United States v. Woolfolk, 399 F.3d 590, 594

(4th Cir. 2005) (citations omitted). Moreover, we review de novo

a trial court’s denial of a Rule 29 motion for judgment of

acquittal. See United States v. Smith, 451 F.3d 209, 216 (4th Cir.

2006); see also United States v. Lentz, 383 F.3d 191, 199 (4th Cir.

2004). A guilty verdict must be sustained if there is substantial

evidence, taking the view most favorable to the prosecution, to

support a finding of guilt. See United States v. Burgos, 94 F.3d

849, 862-63 (4th Cir. 1996). We have defined substantial evidence

as that which “a reasonable finder of fact could accept as adequate

and sufficient to support a conclusion of a defendant’s guilt

8
beyond a reasonable doubt.” Id. at 862 (citing United States v.

Smith, 29 F.3d 914, 917 (4th Cir. 1994)).

When a robbery offense “in any way or degree obstructs,

delays, or affects commerce or the movement of any article or

commodity in commerce,” the Hobbs Act provides a basis for federal

prosecution. See 18 U.S.C. § 1951(a). Although Ware maintains

that a substantial effect on interstate commerce must be shown for

a robbery to be prosecuted under the Hobbs Act, we have

consistently recognized otherwise, holding that a “minimal effect”

is sufficient. See Williams, 342 F.3d at 354 (concluding that

relevant Supreme Court decisions do not disturb our “minimal

effects” standard); see also United States v. Spagnolo, 546 F.2d

1117, 1119 (4th Cir. 1976) (determining that Hobbs Act applies when

extortion offense has a minimal effect on interstate commerce).

Furthermore, the interstate commerce element of a Hobbs Act offense

has been shown “where a robbery depletes the assets of a business

that is engaged in interstate commerce.” Williams, 342 F.3d at

354-55.

In this case, the indictment alleges that Ware committed Hobbs

Act-related offenses in Counts One and Two through his interference

with commerce by the commission of an armed robbery, in

contravention of 18 U.S.C. §§ 1951 and 924(c)(1)(A)(iii). Viewed

in the proper light, the evidence established that Ware robbed

Stokes’s insurance agency in High Point, North Carolina, which sold

9
insurance and bonds for businesses located in South Carolina, New

York, Connecticut, Illinois, and England. In so doing, Ware stole

money orders, checks, credit card payments, debit card payments,

and payment vouchers worth approximately $3,000, including $100 to

$195 in cash.4 As a result, a rational trier of fact could

reasonably conclude that the robbery of the Stokes agency had the

requisite “minimal” effect on interstate commerce. We thus affirm

the district court’s denial of Ware’s motion to dismiss Counts One

and Two and his motions for judgment of acquittal on Count One.

Ware also maintains that the court erred in denying his

proposed instruction on the commerce element of the Hobbs Act.

Specifically, he requested an instruction requiring that the

alleged robbery be shown to have a “substantial effect” on

interstate commerce. We review the denial of a proposed jury

instruction for abuse of discretion. See United States v. Stotts,

113 F.3d 493, 496 (4th Cir. 1997). Generally, “a criminal

defendant is entitled to an instruction as to any defense, provided

that the instruction . . . accurately states the law.” United

States v. Sloley, 19 F.3d 149, 153 (4th Cir. 1994) (citing Mathews

v. United States, 485 U.S. 58, 63 (1988)). Consistent with our

precedent, however, a minimal effect on interstate commerce is all

4
Although there is some difference between Stokes’s testimony
about what was stolen from his agency’s accounting drawer and what
the officers say they recovered from Ware at his arrest, the jury
was entitled to accept Stokes’s version of those facts.

10
that is necessary to establish the commerce element of a Hobbs Act

offense. See Williams, 342 F.3d at 354. Because Ware’s proposed

instruction contravened applicable law, we also affirm the court’s

ruling on this point.

B.

Finally, Ware contends that the district court contravened

Rule 609 of the Federal Rules of Evidence by permitting the

prosecution to cross-examine him on his prior criminal history.

Specifically, Ware argues that his cross-examination was improper

because his prior convictions were more than ten years old. Under

Rule 609, “evidence of a conviction under this rule is not

admissible if a period of more than ten years has elapsed since the

date of the conviction or of the release of the witness from

confinement imposed for that conviction, whichever is the later

date,” unless the court determines that the probative value of the

conviction substantially outweighs its prejudicial effect. Fed. R.

Evid. 609(b). Because Ware failed to object to such cross-

examination at trial, our review of this contention is for plain

error only. See United States v. Lamarr, 75 F.3d 964, 969 (4th

Cir. 1996). In order to establish that the trial court committed

plain error in permitting Ware to be cross-examined on his prior

convictions, he is obliged to show that an error occurred, that it

was plain, and that it was prejudicial to his substantial rights.

See United States v. Olano, 507 U.S. 725, 732 (1993). We would

11
then correct the error if it “seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.” Id. at

732 (internal quotation marks omitted).

Before Ware testified, the trial court warned him that, by

taking the stand, he exposed himself to cross-examination about his

criminal record, including the predicate robbery conviction that

was the subject of the trial stipulation. Importantly, on direct

examination, Ware himself revealed his 1984 and 1995 armed robbery

convictions. First, he acknowledged that he pleaded guilty and

went to prison in 1995 for armed robbery with a dangerous weapon,

apparently seeking to demonstrate to the jury a pattern of

accepting responsibility when he is actually guilty. Specifically,

Ware testified that:

I took a plea bargain then because I knew I had done
wrong. So I asked for a plea and they gave me a plea
bargain. This here I didn’t take no plea bargain because
I hadn’t done nothing wrong. I didn’t rob nobody, so I
didn’t want no plea.

J.A. 197. Ware’s defense counsel then examined him about his other

prior convictions, to which he responded that he had also pleaded

guilty to armed robbery in 1984 “because I knew I had done wrong.”

Id. Thereafter, on cross-examination, and without objection, the

prosecution elicited from Ware that he had been previously

convicted of five other armed robberies.

Ware fails to assert on appeal that, at the time of trial,

more than ten years had elapsed since the date of his release from

12
confinement for his former convictions, as required by Rule 609.5

Ware also does not assert that the evidence of his prior

convictions was improper under the substance of Rule 609 or any

other rule of evidence. See, e.g., Fed. R. Evid. 404(b) (“Evidence

of other crimes, wrongs, or acts . . . may . . . be admissible [to

show] proof of motive, opportunity, intent, preparation, plan,

knowledge, identity or absence of mistake or accident.”).

Moreover, he does not argue that the prosecution’s cross-

examination on his prior convictions prejudicially affected his

trial. As a result, we reject Ware’s challenge on this point.6

5
Although Ware contends that the prosecution’s cross-
examination of him was improper because his prior convictions were
more than ten years old, he does not assert that more than ten
years have passed since his dates of release from confinement for
these convictions. As noted, Rule 609 requires us to look to the
later of these two dates.
6
Ware also contends that the trial court erred in allowing the
prosecution to cross-examine him on the substance of his prior
convictions, because he had already stipulated to a prior felony
conviction. Being raised for the first time on appeal, this issue
is subject to plain error review only. In Old Chief v. United
States, the Supreme Court held that, when a defendant stipulates to
his felony status at the time of his alleged possession of a
firearm (in violation of 18 U.S.C. § 922(g)(1)), the Government is
precluded from offering other evidence to prove the prior
conviction. See 519 U.S. 172, 191 (1997); see also United States
v. Jackson, 124 F.3d 607, 616 (4th Cir. 1997). Although Ware’s
stipulation that he was a felon precluded evidence of his predicate
felony conviction, see United States v. Grimmond, 137 F.3d 823, 831
(4th Cir. 1998) (citing Old Chief, 519 U.S. at 189), the
prosecution did not, in its case-in-chief, offer any additional
evidence on that conviction. When the prosecution elicited
testimony regarding Ware’s other convictions, Ware had already
testified to part of his criminal history. See, e.g., United
States v. Mohr, 318 F.3d 613, 626 (4th Cir. 2003) (finding no error
where court allowed testimony of improper motive on re-direct

13
 III.

Pursuant to the foregoing, the judgment of the district court

is affirmed.

AFFIRMED

because door opened on cross-examination). In these circumstances,
we also reject this contention.

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