United States v. Corbett

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-5005

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANDRE CORBETT,

Defendant - Appellant.

No. 08-5033

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

NILES M. BELK,

Defendant - Appellant.

Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:07-cr-00144-RJC-1; 3:07-cr-00144-
RJC-2)

Submitted: March 8, 2010 Decided: April 2, 2010

Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.

Aaron E. Michel, Charlotte, North Carolina; Andrew Brady
Banzhoff, Asheville, North Carolina, for Appellants. Edward R.
Ryan, United States Attorney, Mark A. Jones, Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

Andre Corbett was convicted of a Hobbs Act 1 conspiracy,

in violation of 18 U.S.C. § 1951 (2006) (Count 1); bank robbery

and aiding and abetting, in violation of 18 U.S.C. § 2113(a)

(2006) (Count 2); Hobbs Act robbery and aiding and abetting, in

violation of 18 U.S.C. § 1951(a), 2 (2006) (Counts 5, 9, 13, 20,

and 24); possession and brandishing a firearm during and in

relation to a crime of violence and aiding and abetting, in

violation of 18 U.S.C. § 924(c), 2 (2006) (Counts 3, 6, 10, 14,

21, 25); obstruction of justice, in violation of 18 U.S.C.

§ 1503 (2006) (Counts 29 and 30); threatening a federal officer,

in violation of 18 U.S.C. § 115(a)(1)(B) (2006) (Count 31); and

mailing threatening communications, in violation of 18 U.S.C.

§ 876 (2006) (Count 32). He received a total sentence of 1,692

months’ imprisonment.

Corbett’s codefendant, Niles M. Belk was convicted of

a Hobbs Act conspiracy (Count 1); robbery affecting interstate

commerce and aiding and abetting (Counts 5, 13, 20, and 24); and

possession of a firearm during and in relation to a crime of

1
In pertinent part, the Hobbs Act prohibits the unlawful
obstruction of commerce, or the movement of any article of
commodity in commerce, by robbery or actual or threatened
violence. 18 U.S.C. § 1951.

3
violence and aiding and abetting (Counts 5, 14, 21, and 25). He

was sentenced to a total of 1,194 months’ imprisonment.

Corbett and Belk filed timely appeals, challenging

whether the evidence was sufficient to support the verdicts

against them. We affirm the district court’s judgment except as

to Corbett’s two obstruction of justice convictions, vacate

those convictions, and remand Corbett’s case to permit

resentencing.

“A defendant challenging the sufficiency of the

evidence faces a heavy burden.” United States v. Foster, 507

F.3d 233, 245 (4th Cir. 2007). We review a sufficiency of the

evidence challenge by determining whether, viewing the evidence

in the light most favorable to the Government, any rational

trier of fact could find the essential elements of the crime

beyond a reasonable doubt. United States v. Collins, 412 F.3d

515, 519 (4th Cir. 2005); see Glasser v. United States, 315 U.S.

60, 80 (1942). We review both direct and circumstantial

evidence, and accord the Government all reasonable inferences

from the facts shown to those sought to be established. United

States v. Harvey, 532 F.3d 326, 333 (4th Cir. 2008).

I. Counts 29 and 30: Obstruction of justice

The Government concedes that the evidence was

insufficient to support Corbett’s convictions for obstruction of

4
justice. To be guilty of obstruction of justice under 18 U.S.C.

§ 1503 (2006), there must be a pending judicial proceeding, of

which the defendant has knowledge, and the defendant “must have

acted with the intent to influence, obstruct, or impede that

proceeding in its due administration of justice.” United

States v. Littleton, 76 F.3d 614, 619 (4th Cir. 1996). A

defendant’s interference with the investigation of a grand jury

is an obstruction of the due administration of justice. United

States v. Grubb, 11 F.3d 426, 437 (4th Cir. 1993). After

reviewing the record, we agree that the Government failed to

provide evidence sufficient to support Corbett’s conviction on

these counts. Accordingly, we vacate Corbett’s conviction on

Counts 29 and 30, and remand so that a corrected judgment can be

imposed.

II. Count 1: Hobbs Act conspiracy

Count 1 charged Corbett and Belk with conspiring to

violate the Hobbs Act. “The Hobbs Act prohibits robbery or

extortion that ‘in any way or degree obstructs, delays, or

affects commerce or the movement of any article or commodity in

commerce.” United States v. Williams, 342 F.3d 350, 353 (4th

Cir. 2003) (quoting 18 U.S.C. § 1951(a)). In order to be

convicted of conspiracy under the Hobbs Act, the Government must

prove (1) the defendants conspired (2) to commit the underlying

5
robbery or extortion (3) that affected interstate commerce. Id.

To prove a conspiracy, the Government must show an agreement

between two or more parties, that the defendant was aware of the

conspiracy, and the defendant “knowingly and voluntarily became

a part of this conspiracy.” United States v. Yearwood, 518 F.3d

220, 225-26 (4th Cir. 2008). “Commerce is sufficiently affected

under the Hobbs Act where a robbery depletes the assets of a

business that is engaged in interstate commerce.” Williams, 342

F.3d at 354-55.

After reviewing the record, we find that the evidence

was sufficient to demonstrate Corbett’s and Belk’s conspiracy to

violate the Hobbs Act by way of robbing the Salisbury Dollar

General on December 11, 2005. Keith Turner, a coconspirator,

testified as to the conspiracy. Turner testified that the

Defendants discussed with him which store to rob, and the

location of the safe in the store. Turner twice scouted the

store at Corbett’s instruction, providing information to Corbett

regarding the store’s occupants and security.

This conspiracy is further shown through the events of

the robbery itself. That Belk was shot by police while fleeing

with a coconspirator necessarily demonstrates his participation

in the conspiracy. Concerning Corbett’s participation, the jury

heard Turner’s testimony describing his flight from the scene

with Corbett, including Corbett’s attempts to hide his gun and

6
the stolen money. Finally, it was undisputed that Dollar

General was engaged in interstate commerce, as it was

headquartered in Tennessee, and had over eight-thousand stores

in thirty to forty states, and sold goods manufactured outside

of North Carolina. Thus, it is clear that the robbery affected

interstate commerce, as it depleted the resources of a business

engaged in interstate commerce. Williams, 342 F.3d at 354-55.

Though the Defendants contend that we erred when concluding in

Williams that a minimal effect on interstate commerce satisfied

the jurisdictional requirement, one panel of this court cannot

overrule the precedent established by a prior panel. United

States v. Chong, 285 F.3d 343, 346-47 (4th Cir. 2002). Thus,

the Defendants’ arguments in this regard are unavailing. As a

rational trier of fact could find the essential elements of a

Hobbs Act conspiracy beyond a reasonable doubt, Corbett’s and

Belk’s sufficiency challenges to Count 1 fail.

Additionally, though Appellants now raise a venue

challenge, they failed to do so before the trial court. Though

challenges to venue are of a constitutional dimension, they may

be waived if not raised either before trial, or at the close of

all the evidence. See United States v. Ebersole, 411 F.3d 517,

524-25 (4th Cir. 2005); United States v. Melia, 741 F.2d 70, 71

(4th Cir. 1984). Because Corbett and Belk failed to raise this

7
issue at any point before the district court, they have waived

their right to challenge venue.

III. Counts 2 and 3: First Citizens Bank robbery

In Counts 2 and 3, Corbett was charged with bank

robbery and aiding and abetting, in violation of 18 U.S.C. § 2,

2113(a), and use of a firearm during a crime of violence, in

violation of 18 U.S.C. § 924(c). Section 2113(a) of 18 U.S.C.

proscribes the use of force, violence, or intimidation to

“take[] or attempt[] to take, from the person or presence of

another . . . any property or money or any other thing of value

belonging to, or in the care, custody, control, management, or

possession of, any bank” insured by the FDIC. To prove a

violation of 18 U.S.C. § 924(c), the government must prove that

the defendant used a firearm, and the defendant did so during

and in relation to a crime of violence. United States v.

Mitchell, 104 F.3d 649, 652 (4th Cir. 1997). “To prove the

crime of aiding and abetting the government must show that the

defendant knowingly associated himself with and participated in

the criminal venture.” United States v. Kingrea, 573 F.3d 186,

197 (4th Cir. 2009).

After reviewing the record, we find that the evidence

was sufficient to demonstrate that Corbett both robbed the First

Citizens Bank and used a firearm while doing so. It is

8
undisputed that the robbers of the First Citizens Bank used

firearms to effect the robbery. One robber, carrying a black

duffle bag, was wearing a dark shirt with a distinctive diamond

pattern. At the robber’s instruction, the bank teller put

$1,356 and a dye pack in the bag, and gave the bag back to the

robber, who then left the branch with his companion. The teller

testified that the robbers entered a sedan and removed their

masks, revealing that they were black males. As they drove

away, the teller observed the dye pack exploding, and the robber

throwing the bag into a nearby construction area. A crime scene

investigator authenticated a black nylon bag filled with dye-

stained currency that was found at the construction site,

pictures of the bag, a spent dye pack, and a luggage claim

ticket attached to the bag that read “Corbett, Andre.”

Additionally, the prosecution displayed a DMV picture of Andre

Corbett alongside a surveillance photo of the robbery. In both

pictures, Corbett was wearing the same dark shirt with a

distinctive diamond pattern. Viewing this evidence in the light

most favorable to the Government, a rational trier of fact could

find the essential elements of Counts 2 and 3 beyond a

reasonable doubt.

9
 IV. Counts 9 and 10: Sam’s Mart robbery

Count 9 charged Corbett and Belk with violation of the

Hobbs Act by robbing and aiding and abetting the robbery of a

Sam’s Mart; Count 10 alleged that Corbett and Belk used a

firearm in furtherance of the robbery. “A Hobbs Act violation

requires proof of two elements: (1) the underlying robbery or

extortion crime, and (2) an effect on interstate commerce.”

Williams, 342 F.3d at 353.

First, it is undisputed that Sam’s Mart is engaged in

interstate commerce, as it sells items received from outside

North Carolina. Therefore, it is clear that the robbery of

this establishment affected interstate commerce. Williams, 342

F.3d at 354-55. Similarly, it is undisputed that the robber

used a firearm in furtherance of the robbery.

Moreover, we find the Government presented sufficient

evidence during its case in chief to demonstrate that Corbett

assisted in the robbery. Rosalyn Joyner, a customer at the

Sam’s Mart during the robbery, testified that the robber was a

black man, between 5 feet 8 inches and 5 feet 11 inches tall,

and chubby, and was wearing a black t-shirt and a ski mask, and

had darker skin than the driver of the get-away car. The car

was a tan Ford Taurus, with the license number TXY-3193, which

was registered to Corbett and his former fiancé, Jameelah

Johnson. Additionally, Johnson testified that she had cosigned

10
for Corbett to purchase the car, and that the car was driven by

Corbett. Toward the end of the trial, both Belk and Corbett

stood so the jury could observe their relative heights, weights,

hair styles, and relevant physical features. As Belk matched

the description of the robber, and Corbett matched the

description of the get-away driver, and the robbery was

perpetrated using his car, a rational trier of fact could find

the essential elements of Counts 9 and 10 beyond a reasonable

doubt.

V. Counts 24 and 25: Stallings Dollar General robbery

Count 24 charged Corbett and Belk with violation of

the Hobbs Act by robbing a Dollar General store in Stallings,

North Carolina; Count 25 alleged that Corbett and Belk used a

firearm in furtherance of the robbery. It is undisputed that

the Dollar General is engaged in interstate commerce, as it

sells items manufactured in other states and other countries.

Therefore, it is clear that the robbery of this establishment

affected interstate commerce. Williams, 342 F.3d at 354-55.

Similarly, it is undisputed that the robbers used firearms in

furtherance of the robbery.

Additionally, we find the evidence was sufficient to

demonstrate that Corbett and Belk were the perpetrators of the

robbery. Augustus King, district manager for Dollar General

11
Stores in the Stallings, NC area, authenticated surveillance

recordings of the robbery, which were admitted into evidence and

shown to the jury. From the surveillance video, the jury was

able to observe the heights, weights, and physical features of

the robbers.

Marsha Cochran, a lead clerk at the Dollar General,

testified that one of the robbers approached her and began to

search and question her, while the other walked the other

direction through the store, searching for another woman the

robbers believed was working with Cochrane. The robber

questioning Cochrane was approximately 5 feet 8 inches or 5 feet

9 inches tall, and was wearing a black ski mask and black

jacket. The robber pulled her around the back of the cash

registers, and forced her at gunpoint to enter the store’s

office and open the safe. This was done in substantially the

same manner as Corbett and Belk had perpetrated the Salisbury

Dollar General robbery.

Additionally, Cochran testified that the store sold

DVD players, and one was missing after the robbery. The

surveillance video of the robbery showed one of the robbers

repeatedly walking by the area in which the DVD players were

kept. Jameelah Johnson, Corbett’s former fiancé, testified that

Corbett gave her a small, silver DVD player as a gift. The DVD

player she received did not have a box or user’s manual with it,

12
and it appeared to be the same type stocked by the Dollar

General Store. Viewing the evidence in the light most favorable

to the Government, we find that a rational trier of fact could

find the essential elements of Counts 24 and 25 beyond a

reasonable doubt.

VI. Food Lion robberies

A. Counts 5 and 6: Indian Trail Food Lion robbery

Count 5 charged Corbett and Belk with violation of the

Hobbs Act by robbing the Indian Trail Food Lion; Count 6 alleged

that Corbett and Belk used a firearm in furtherance of the

robbery. It is undisputed that the Indian Trail Food Lion is

engaged in interstate commerce, as it sells items manufactured

in other states and other countries. (JA 675-76). Therefore,

it is clear that the robbery of this establishment affected

interstate commerce. Williams, 342 F.3d at 354-55. Similarly,

it is undisputed that the robbers used firearms in furtherance

of the robbery.

Additionally, the evidence presented by the Government

was sufficient to establish that Corbett and Belk were the

perpetrators of the robbery. Tiffany Horne, an employee at the

Indian Trail Food Lion, testified that two masked men entered

the store twenty minutes before closing time. One of the

robbers took approximately $200 from Horne’s register, while the

13
other ran over to the customer service counter and went into the

office. Horne testified that though both robbers wore ski

masks, she could tell both were African-American, and one was

larger than the other. The jury watched multiple videos of the

robberies, in which they were able to observe the robbers’

physical features, clothing, and the guns they carried;

additionally, still frames of the robberies were entered into

evidence. One such still frame depicted the smaller robber

emptying a safe in the Food Lion office. While doing so, a

taped revolver sat on the floor next to his feet. Jameelah

Johnson testified that Corbett owned a revolver with silver tape

on the handle, and images of such a revolver were recovered from

Corbett’s cell phone. Another still frame from the robbery

depicted the larger robber holding a long gun while wearing

distinctive white gloves with black stripes, the same as those

worn by Belk when he robbed the Salisbury Dollar General.

B. Counts 13 and 14: Plaza Food Lion robbery

Count 13 charged Corbett and Belk with violation of

the Hobbs Act by robbing the Plaza Food Lion; Count 14 alleged

that Corbett and Belk used a firearm in furtherance of the

robbery. Once again, the only dispute is whether the Defendants

were the actual perpetrators of the offense. Tonya McQueen, an

employee at the Plaza Food Lion, testified as to the August 29,

14
2005 robbery. McQueen testified that the two robbers entered

the Food Lion around seven in the morning. The first robber was

wearing a toboggan style mask and a dark blue mechanic’s suit.

He carried a black handgun. During McQueen’s testimony, a

surveillance video of the robbery was played, during which the

jury was able to observe the robbers’ physical features,

clothing, and weapons. The video depicted the second, smaller

robber going into the office with the bank manager.

Iris Faulkner-Riley, a Food Lion customer, also

testified regarding the Plaza Food Lion robbery. Faulkner-Riley

testified that she saw the larger robber carrying what appeared

to be a sawed-off shotgun as he approached the cash register.

The robber was African-American, and was wearing all black, with

a black mask covering the lower half of his face. The robber

instructed her to lay down on the floor and gave instructions to

the other individuals at the cash register to do the same.

During Faulkner-Riley’s testimony, the jury watched two

surveillance videos of the robbery, during which the jury as

able to observe the robbers’ physical features, clothing, and

weapons. The jury also saw a still frame from the video, which

depicted a robber wearing distinctive white gloves with black

stripes. These gloves appeared to be the same as those worn by

one of the robbers of the Indian Trail Food Lion and those worn

by Belk when he was shot during the Dollar General robbery in

15
Salisbury, NC. Additionally, the jury was shown a picture

extracted from Corbett’s cell phone, taken approximately thirty

minutes after the Plaza Food Lion was robbed, which depicted a

large pile of loose cash.

C. Counts 20 and 21: South Tryon Food Lion robbery

Count 20 charged Corbett and Belk with violation of

the Hobbs Act by robbing the South Tryon Food Lion; Count 21

alleged that Corbett and Belk used a firearm in furtherance of

the robbery.

Again, only the identities of the perpetrators is in

question. Jessica Duran, a store employee, testified that two

armed men wearing masks entered the Food Lion at approximately

10:55 p.m., five minutes before closing time. One robber had a

handgun and the other had a longer gun that was grey at the end.

Duran informed the jury that while she was hiding behind a

cashier register, one of the robbers stood near the registers,

telling her to put her head down, while the other robber went

with the manager to the office. The jury watched three

surveillance videos of the robbery, while Duran identified the

individuals depicted in the videos.

Joshua Floyd, a manager at the Food Lion, testified

that he was standing at a computer kiosk at the front of the

store at the time of the robbery. One of the robbers hurdled

16
over the kiosk, grabbed Floyd from behind, and put a gun to his

head. The robber pulled Floyd to the office and told him to

open the office door, threatening to “blow [his] head off,” when

Floyd put the wrong key in the lock. When the door was open,

the robber pushed Floyd toward the safe and instructed him to

open it. Floyd testified that the robber was wearing a jacket

and had a mask covering his whole face, and seemed to be only

slightly taller than Floyd, who was 5 feet 4 inches tall, and

sounded African-American. The other robber appeared to be at

least 6 feet tall, if not taller. The jury watched three more

surveillance videos of the robbery, depicting the physical

characteristics and clothing of the robbers.

The videos of each of the Food Lion robberies, as well

as the testimony of the customer and employee victims of the

robberies, showed that the robbers’ modus operandi in each

robbery was identical. After entering the stores together, the

larger robber would approach the cash registers, rob the

customers or registers, and maintain control of the customers

and employees, while the shorter, slimmer robber would seek out

the office safe and force the manager to open it. The jury

heard testimony that Corbett had worked at multiple Food Lion

stores between 2003 and 2005, and that if someone was familiar

with the safe in one store, he would be familiar with the safe

in other stores as well. Therefore, viewing the evidence in the

17
light most favorable to the Government, we find the evidence

sufficient to support these verdicts.

VII. Count 31: Threatening to assault a federal officer

Count 31 charges that Corbett threatened to assault an

ATF agent working on his case. The charge was based on a letter

Corbett wrote to his girlfriend, Jameelah Johnson, in which

Corbett told her he wanted to slice the agent’s face with a box

cutter, and “want[ed] to see him bleed.”

Title 18 of the United States Code, Section

115(a)(1)(B), prohibits

[T]hreat[s] to assault, kidnap, or murder, a . . .
Federal law enforcement officer . . . with intent to
impede, intimidate, or interfere with such . . . law
enforcement officer while engaged in the performance
of official duties, or with intent to retaliate
against such . . . law enforcement officer on account
of the performance of official duties.

18 U.S.C. § 115(a)(1)(B). In Corbett’s brief, he contends that

the letter was nothing more than “a graphic expression of

contempt for what the agent had done to the intended recipient

of the letter.” Therefore, according to Corbett, “the letter

was not a true threat, but, instead, speech protected by the

First Amendment.” Corbett also asserts that making such

statements was a form of therapy for him.

Corbett’s arguments are unavailing. “Statements

constitute a true threat if an ordinary reasonable recipient who

18
is familiar with their context would interpret those statements

as a threat of injury.” United States v. Armel, 585 F.3d 182,

185 (4th Cir. 2009) (quotation marks and citations omitted).

That a defendant cannot, or likely will not, carry out the

statement does not render it unthreatening for purposes of the

statute. Id. Here, since Corbett knew the referenced agent was

investigating both Johnson and himself and had spoken with

Johnson, we find a jury could conclude that a reasonable

recipient would interpret Corbett’s statements about slicing the

agent’s face with a box cutter as a threat, in retaliation for

the agent’s supposed persecution of Corbett. Accordingly, we

find that the evidence was sufficient to allow a reasonable

trier of fact to find Corbett guilty beyond a reasonable doubt

of threatening a federal officer.

VIII. Count 32: Mailing a threatening communication

Count 32 charges that, in mailing the above-mentioned

letter, Corbett violated 18 U.S.C. § 876. Title 18 of United

States Code Section 876

[M]akes it a crime to knowingly deposit in any post
office or authorized depository for mail matter, to be
sent or delivered by the Postal Service or to
knowingly cause the Postal Service to deliver any
communication with or without a name or designating
mark subscribed thereto, addressed to any other person
and containing any threat to ... injure the person of
the addressee or of another.

19
United States v. Worrell, 313 F.3d 867, 869 (4th Cir. 2002)

(quoting 18 U.S.C. § 876) (quotation marks and alterations

omitted). Here, it is undisputed that Corbett mailed the above-

mentioned letter to Johnson. Because a reasonable recipient

would interpret the statements contained in the letter as a

threat, the evidence is sufficient to support Corbett’s

conviction for mailing a threatening communication.

Accordingly, we grant Corbett’s motion to file a pro

se supplemental brief, 2 affirm the judgment in part, vacate in

part, and remand for further proceedings. We dispense with oral

argument because the facts and legal contentions are adequately

expressed in the materials before the court and argument would

not aid the decisional process.

AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

2
Though we grant Corbett’s motion, we have reviewed
Corbett’s supplemental brief and find the claims raised therein
to be without merit.

20