IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-10082
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PATRICK WEBSTER,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Texas
(3:96-CR-291-1-T)
November 6, 1997
Before GARWOOD, JONES and STEWART, Circuit Judges.*
PER CURIAM:
Defendant-appellant Patrick Webster (Webster) appeals his
guilty plea conviction for robbing an armored car in violation of
the Hobbs Act, 18 U.S.C. § 1951(a) and 2. Webster argues two
points on appeal. First, he argues that the indictment was
defective because it did not allege that the robbery affected
*
Pursuant to 5TH CIR. R. 47.5 the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
interstate commerce. Second, he argues that his guilty plea is
invalid because the factual resume did not show that his robbery
affected interstate commerce. We affirm.
Factual and Procedural Background
Webster was charged in a two-count indictment returned in
August 1996. Count One charged robbery affecting commerce contrary
to the Hobbs Act, and aiding and abetting same. Count Two charged
use and carrying of a firearm in connection with the Hobbs Act
offense, and aiding and abetting such, contrary to 18 U.S.C. §§
924(c)(1) and 2. Webster, through counsel, filed several discovery
motions and a motion to dismiss Count One of the indictment. The
motion to dismiss Count One asserted that the indictment did not
adequately plead an effect on interstate commerce, citing United
States v. Collins, 40 F.3d 95 (5th Cir. 1994).1 The district court
overruled the motion to dismiss. Subsequently, Webster and the
prosecutor entered into a written plea agreement and a document
entitled “Factual Resume.” Each was signed by Webster’s attorney
and by Webster personally. The plea agreement recites that Webster
will plead guilty to Count One, which it describes as “robbery
affecting interstate commerce” contrary to the Hobbs Act, and the
1
Count One alleges in relevant part that Webster and others,
aided and abetted by each other, “did obstruct, delay, and affect
commerce and attempted to do so, by robbery, to wit: the
defendants took and obtained, from the person and presence of
Darrell Smith, employee of Armored Transport of Texas, Inc., United
States currency, against his will, by means of actual and
threatened force and violence and fear of injury to his person.”
2
government will dismiss Count Two at sentencing and “recommend the
lowest level of the guideline range determined applicable by the
court.”2 The factual resume, which the plea agreement says “is
true and correct,” states that on August 6, 1996, in the Dallas
Division of the Northern District of Texas, Webster, Still, Wilson,
and Washington
“did knowingly and willfully obstruct, delay and affect
commerce by taking from the person and presence of
Darrell Smith, an employee of Armored Transport of Texas,
United States currency, against Smith’s will. The
currency was obtained by use of actual and threatened
force and violence and fear of injury to the person of
Darrell Smith.
On or about August 5, 1996, WEBSTER met with Still
and Wilson to plan the robbery of the armored car on
August 6, 1996. Still was employed by Armored Transport
of Texas, Inc., as a driver and guard. Still provided
information as to where the robbery would occur and how
to gain entry to the armored car. According to
information provided to agents of the Federal Bureau of
Investigation by Still and Wilson, it was planned that a
gun would be placed to the head of a second guard who
would be in the armored car while Still faked resistance
to the robbery. The money gained from the robbery of the
armored car was to be split among Still, WEBSTER and
Wilson.
On or about August 6, 1996, WEBSTER and Wilson
gained entrance to the armored truck driven by Still by
overpowering a second guard, Darrell Smith, at gunpoint.
The armored car, along with Darrell Smith, was taken from
the original scene of the robbery by Still, WEBSTER and
Wilson. Smith’s eyes were taped and his hands were
bound. A nineteen minute police chase terminated when
the armored car crashed into a residential fence and
WEBSTER and Wilson fled on foot. The armored car
2
If convicted on Count Two, Webster would have faced a
mandatory sentence of five years additional to any sentence imposed
on Count One. Section 924(c)(1).
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contained approximately 1.2 million dollars in United
States currency.
WEBSTER agrees that this Factual Resume is true and
correct, except as it relates to Still and Wilson’s
contention that it was part of the original plan to use
a gun during the robbery. WEBSTER maintains that he was
not aware of the gun until the robbery occurred.”
(Emphasis added).
Subsequently, Webster was rearraigned and his guilty plea to
Count One was accepted. At the rearraignment, the plea agreement
was presented and summarized and Webster, who was twenty-seven
years old and had one year of college, said he had read and signed
it and discussed it with his attorney and understood all its
provisions. The factual resume was then read aloud and Webster
stated that it was correct.
Approximately six days later Webster filed an unverified pro
se motion to withdraw his plea, arguing that his attorney had
pressured him into entering into it, that the plea agreement did
not contain what he had, prior to rearraignment, thought it would
contain, and that “the representations of the factual resume are
not fully true or correct.” No specifics are asserted, and the
motion is entirely conclusory. No mention is made of commerce or
interstate commerce. No assertion of innocence is made. The
district court denied the motion. Over two months thereafter,
Webster, pro se, filed two further motions to withdraw his plea,
urging that because the armored car guard, Still, was in on the
offense, and had lawful custody of the money, and because Webster
did not know a gun was going to be used on the other guard, Smith,
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that there was no robbery as charged in the indictment, but rather
merely embezzlement or larceny. No mention of commerce or
interstate commerce is made or even hinted at in any of these
motions.
At the subsequent sentencing hearing, Webster testified that
Still, one of the two guards on the armored truck, was in on the
plan to take the money from the armored car, and that although
Smith, the other guard, was not, Webster did not believe a gun
would be either needed or used. Webster admitted Smith carried a
gun. Webster had driven an armored car for the same company.
Webster also admitted that a firearm was in fact used by Wilson,
one of the other participants. An FBI agent testified that another
participant had told him that he had observed Wilson brandishing
his gun in Webster’s presence before the robbery. In his direct
examination, Webster stated:
“A. Well, one reason I think this is not a robbery, it’s
a [sic] embezzlement by theft.
Q. Why do you say that?
A. Because it was two security guards that was agents by
the company, employed by the company, and both had a
right to have -- they both had rights to have --
transport the money. And one security -- one security
officer, he’s deceived the company and the other security
officer --”
Later on at the sentencing hearing, the following transpired:
“THE COURT: All right. The court has also before
it Mr. Webster’s motion to withdraw his plea.
Does Mr. Webster wish to address that?
MR. HENDRICK [Webster’s counsel]: Yes, Your Honor.
We would -- I believe the court has previously denied Mr.
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Webster’s first motion to withdraw his plea. We have
filed two additional motions basically arguing that the
-- he’s to be permitted to withdraw his plea because this
offense was not a robbery. It was either a theft by
deception or an embezzlement, and for those reasons, we
reurge defendant’s motion to be able to withdraw his
plea.
THE COURT: All right. The court having previously
accepted the defendant’s plea finds that the defendant in
this case has put forth no fair or just reason why the
plea should be allowed to be withdrawn.”
The PSR reflects that the armored car had been robbed “at the
BankOne location at 112 South Garland Road in Garland, Texas,” that
the armored car contained $1,288,602 in United States currency, and
that “[a]ll of the money was recovered, therefore, BankOne suffered
no loss as a result of this robbery.” Nothing in the record, or in
the PSR, in any way suggests that Webster, either in person or
through counsel, ever contended that either the factual resume, or
the evidence or matter otherwise before the court, was insufficient
to show the required nexus to interstate commerce, or ever
contended that in point of fact such nexus was lacking. Nor does
the record contain anything to suggest that in point of fact there
was no such requisite nexus.
Discussion
1. Indictment.
Webster’s argument, that the indictment was defective, is
meritless. The indictment, like section 1951(a), referred to the
robbery’s effect on “commerce.” Webster argues that this is an
6
insufficient indictment since a crime can only be a section 1951(a)
offense if it affects interstate commerce.
While the robbery must affect interstate commerce in order to
constitute a Hobbs Act violation, the indictment need not
specifically use the term “interstate commerce.” The term
“commerce” alone is sufficient to charge a Hobbs Act violation.
See United States v. Gipson, 46 F.3d 472, 474 (5th Cir. 1995), and
United States v. Parker, 73 F.3d 48, 54-55 (5th Cir. 1996) (both
upholding Hobbs Act indictments that alleged an interference with
“commerce,” rather than interstate commerce, and holding that
“commerce,” when used in a Hobbs Act indictment, covered interstate
commerce). The Hobbs Act uses the term “commerce,”3 but defines it
to mean interstate commerce. See 18 U.S.C. § 1951(b)(3) (defining
commerce to include only commerce within United States Territories
and interstate commerce). See also United States v. Williams, 679
F.2d 504 (5th Cir. 1982). Since Webster’s indictment tracks the
language of the Hobbs Act, and thereby covers each prima facie
element of the charge and notifies the defendant of the charge, we
find that it is sufficient.
2. Rule 11(f).
Webster’s sole remaining argument, that the district court
erred by failing to require a showing that this robbery affected
3
"Whoever in any way or degree obstructs, delays, or affects
commerce or the movement of any article or commodity in commerce,
by robbery or extortion . . . .” 18 U.S.C. § 1951(a).
7
interstate commerce, is likewise without merit. We read Webster’s
argument to be merely that reversible error is present because the
factual resume, which was the only relevant rearraignment evidence
other than the plea agreement, did not include any facts concerning
the interstate effect of the robbery.
The contention that the factual resume did not contain any
information that the robbery affected interstate commerce is being
raised by Webster for the first time on appeal; this point, must,
therefore, be reviewed for plain error. See Fed. R. Crim. P.
52(b); United States v. Olano, 113 S.Ct. 1770 (1993). There is
nothing to suggest that the omission from the factual resume of
details on the robbery’s connection to interstate commerce is other
than a technical imperfection, which doubtless could easily have
been remedied by the district court had Webster brought it to the
court’s attention in any of his three motions to withdraw his
guilty plea. Webster was fully aware of the nexus requirement
under the Hobbs Act, as reflected by his citation below of Collins.
And, United States v. Lopez, 115 S.Ct. 1624 (1995), had been
decided for over a year. Webster does not contend that in actual
fact the required nexus to interstate commerce was lacking.
Indeed, it is difficult to imagine that a $1,200,000 robbery from
an interstate banking concern such as BankOne does not have the
requisite nexus. The factual resume states that Webster did
“obstruct, delay and effect commerce by” the robbery, and the plea
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agreement says that the robbery was one “affecting interstate
commerce” and that the factual resume is correct. It is not clear
that any error of the district court was “plain” or that it affects
substantial rights. In any event, even assuming arguendo that
error which is plain and affects substantial rights is present, in
the instant context we choose to exercise our discretion not to
correct this claimed error that is raised for the first time on
appeal. See Olano, 113 S.Ct. at 1778 (“Rule 52(b) is permissive,
not mandatory.”); United States v. Mmahat, 106 F.3d 89, 95-96 (5th
Cir. 1997) (same).
AFFIRMED
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