United States v. Nguyen

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
SEP 3 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 97-3106
PHOUC H. NGUYEN, a/k/a Jimmy
Nguyen,
Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 94-10129-01)

David Autry, Oklahoma City, Oklahoma, for Defendant-Appellant.

D. Blair Watson, Assistant United States Attorney (Jackie N. Williams, United
States Attorney; and Lanny D. Welch, Assistant United States Attorney, with him
on the brief), Wichita, Kansas, for Plaintiff-Appellee.

_________________________

Before ANDERSON , McKAY , and BRISCOE , Circuit Judges.

McKAY , Circuit Judge.

__________________________
 Defendant appeals his convictions for interference with interstate

commerce by robbery, aiding and abetting the robbery, and aiding and abetting

the killing of Mrs. Barbara Sun. The charges against Defendant stem from his

involvement in the robbery of the Mandarin Restaurant and Lounge in Wichita,

Kansas, and the murder of Mrs. Sun on November 8, 1994. Mrs. Sun owned and

operated the restaurant with her husband, Mr. Mark Sun. Defendant,

accompanied by three co-defendants, entered the Mandarin to initiate the robbery.

While two of the co-defendants tied up Mr. Sun and a waiter, Defendant and co-

defendant Mr. Bountaem Chanthadara took Mrs. Sun upstairs. Mrs. Sun was

beaten and shot five times. She died that evening from multiple gunshot wounds.

Following the robbery and the murder of his wife, Mr. Sun closed the restaurant

for twenty-two days. The restaurant reopened for six months before it

permanently closed in June 1995.

On January 4, 1996, Defendant was charged in a superseding indictment

with two counts: (1) interference with interstate commerce by robbery in

violation of 18 U.S.C. § 1951 [Hobbs Act], and aiding and abetting the robbery in

violation of 18 U.S.C. § 2; and (2) carrying and using a firearm during and in

relation to the robbery in violation of 18 U.S. C. § 924(c)(1), causing the death of

a person through the use of a firearm, which constitutes murder under 18 U.S.C.

§§ 924(i)(1) & 1111(a), and aiding and abetting the killing of Mrs. Sun in

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violation of 18 U.S.C. § 2. The district court denied Defendant’s motions to

suppress statements and to dismiss Count 2, and a jury convicted Defendant on

both counts. The jury convicted Defendant under Count 2 for aiding and abetting

the murder of Mrs. Sun. Defendant was sentenced to 240 months imprisonment

on Count 1 and life imprisonment without the possibility of release on Count 2, to

be served concurrently. Defendant raises several issues on appeal.

I. Voluntariness of Defendant’s Statement

Defendant argues that his Fifth Amendment rights were violated by the

district court’s erroneous admission of his post-arrest statement to the FBI in

which he confessed involvement in the robbery. He asserts that the statement was

involuntary because it was conditioned on assurances of favorable treatment and

leniency, however slight. After a hearing, the district court found that

Defendant’s statement was voluntary and denied his motion to suppress.

In reviewing a district court’s denial of a motion to suppress a statement or

confession, we accept the district court’s underlying factual findings unless they

are clearly erroneous. See United States v. Roman-Zarate , 115 F.3d 778, 783

(10th Cir. 1997) . The ultimate issue of whether a statement was voluntary is a

question of law which we review de novo . See Miller v. Fenton , 474 U.S. 104,

110 (1985); United States v. Perdue , 8 F.3d 1455, 1466 (10th Cir. 1993). A

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determination of voluntariness is based on the totality of the circumstances. See

Schneckloth v. Bustamonte , 412 U.S. 218, 226 (1973); Perdue , 8 F.3d at 1466.

We examine several factors including the characteristics of the suspect, such as

his age, intelligence, and education, and the details of the interrogation, such as

whether the suspect was informed of his rights, the length of the detention and the

interrogation, and the use or threat of physical force. See Roman-Zarate , 115

F.3d at 783; Perdue , 8 F.3d at 1466; United States v. Muniz , 1 F.3d 1018, 1021

(10th Cir.), cert. denied , 510 U.S. 1002 (1993).

Several factors indicate that Defendant’s statement was given voluntarily.

Defendant testified at the suppression hearing that he was advised of his Miranda

rights and that he understood those rights before making his statement. He

admitted that he initialed the waiver of rights form and conceded that the FBI

agent neither threatened him nor used physical force against him. See Muniz , 1

F.3d at 1022. “[T]here is no evidence suggesting [Defendant] was unusually

susceptible to coercion because of age, lack of education, or intelligence.”

Roman-Zarate , 115 F.3d at 783. The record shows that Defendant was twenty-one

years old at the time of his arrest, had a GED, was comfortable with the English

language, was intelligent, and was capable of understanding his statement when it

was reduced to writing. Defendant’s correction of one word in the written

statement provides support for the court’s determination that Defendant was alert

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and cooperative and acted of his own free will. The district court correctly found

that “[t]he interview itself was conducted in a non-coercive fashion and was not

lengthy.” R., Vol. II, Doc. 123 at 5. We note that, although courts may consider

whether a defendant knew the nature of the offense under investigation when

determining the voluntariness of a confession, this confession was not coerced

merely because the police did not inform Defendant of all the potential charges

that could be brought against him. See United States v. Braxton , 112 F.3d 777,

783-84 (4th Cir.) (stating that officers have no duty to inform suspects of nature

of crime being investigated unless suspect asks), cert. denied , U.S. , 118 S.

Ct. 192 (1997); cf. Colorado v. Spring , 479 U.S. 564, 575-77 (1987) (holding that

“a suspect’s awareness of all the possible subjects of questioning in advance of

interrogation is not relevant to determining whether the suspect voluntarily,

knowingly, and intelligently waived his Fifth Amendment privilege”); Harvey v.

Shillinger , 76 F.3d 1528, 1536-37 (10th Cir.) (holding defendant’s statement

voluntary because the “Constitution does not require that a criminal suspect know

and understand every possible consequence of a waiver of the Fifth Amendment

privilege”) (quotation marks and citation omitted), cert. denied , U.S. , 117

S. Ct. 253 (1996).

At the suppression hearing, Defendant testified that his confession was

coerced because the FBI agent told him about the penalties he would face and

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indicated that he might receive lenient treatment if he cooperated. FBI Agent

Wenko, however, testified at the suppression hearing that he did not make any

offers of assistance or leniency and did not discuss possible sentences with

Defendant. Agent Wenko also stated that no one else made such statements in his

presence. In attempting to resolve this discrepancy and determine the credibility

of the witnesses, the district court found both Defendant and Agent Wenko

credible. “[I]nsofar as the discrepancy [was] concerned,” however, the court

found the FBI agent’s “testimony to be more credible, primarily because so much

of [it] was corroborated by [D]efendant.” R., Vol. II, Doc. 123 at 7.

Defendant argues that the court’s credibility determination was erroneous

because Agent Wenko changed his testimony at trial and, therefore, Defendant’s

own testimony at the suppression hearing is more credible. At trial, Agent Wenko

testified that he neither discussed the length of a sentence with Defendant nor

made any statements about informing the prosecutor or judge if Defendant

cooperated. This testimony is consistent with Agent Wenko’s testimony at the

suppression hearing. Agent Wenko also testified at trial that another FBI agent

present at the interview, Agent Flosnick, may have made statements about

cooperation or length of sentence. This trial testimony represents that Agent

Wenko could not testify, of his own knowledge, that nobody else made such

statements. The agent’s trial testimony is sufficiently consistent with his prior

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testimony at the suppression hearing that it does not constitute newly discovered

evidence, even if it is slightly different than his suppression hearing testimony.

In any case, a statement to inform the prosecutor of a defendant’s cooperation

without any other indications of coercion does not constitute a promise of

leniency. See Roman-Zarate , 115 F.3d at 780, 783-84; United States v. Garot ,

801 F.2d 1241, 1244-45 (10th Cir. 1986); cf. Clanton v. Cooper , 129 F.3d 1147,

1158-59 (10th Cir. 1997) (stating that evidence that sheriff told suspect he would

get twenty-five-year sentence if he did not confess, but would get off lightly if he

did confess, raised question of fact over whether confession was voluntary);

Griffin v. Strong , 983 F.2d 1540, 1541-42 (10th Cir. 1993) (holding that

statement was coerced by threat that defendant would be unable to see his child

again coupled with promise to protect defendant’s health and safety in jail). Any

such statement that is possibly attributable to Agent Flosnick did not coerce

Defendant’s statement. After reviewing the entire record and considering the

totality of the circumstances, we hold that the record supports the court’s difficult

credibility determination, its determination that Defendant’s statement was given

voluntarily, and its decision that no new evidence supported Defendant’s claim of

coercion. See Anderson v. City of Bessemer City, N.C. , 470 U.S. 564, 575 (1985)

(great deference owed to credibility determinations). The court did not err in

admitting Defendant’s statement at trial.

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 II. Sufficiency of the Evidence

Defendant argues that the evidence was insufficient to convict him on both

Count 1 and Count 2. We review the sufficiency of the evidence de novo ,

viewing the evidence and the inferences therefrom in a light most favorable to the

government to determine if a reasonable jury could find beyond a reasonable

doubt that the defendant was guilty. See United States v. Voss , 82 F.3d 1521,

1524-25 (10th Cir.), cert. denied , U.S. , 117 S. Ct. 226 (1996).

Defendant argues that the government did not satisfy the requirements of

the Hobbs Act in Count 1 because the evidence did not demonstrate that the

robbery affected interstate commerce. The Hobbs Act is implicated if someone

“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 to do so.” 18 U.S.C. § 1951(a). After the Supreme Court’s decision in

United States v. Lopez , 514 U.S. 549 (1995), we held that, to support a conviction

under the Hobbs Act, the government must show only that the defendant’s acts

had a minimal effect on interstate commerce. See United States v. Bolton , 68

F.3d 396, 397-99 (10th Cir. 1995), cert. denied , 516 U.S. 1137 (1996). The

minimal effect on commerce may be established by evidence that the assets of a

business engaged in interstate commerce, or which customarily purchases items in

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interstate commerce, are depleted. See id. at 399; United States v. Zeigler , 19

F.3d 486, 489-90 (10th Cir.), cert. denied , 513 U.S. 1003 (1994). The depletion

of assets curtails “the victim’s potential as a purchaser of such goods.” Zeigler ,

19 F.3d at 490 (quotation marks and citation omitted).

During trial, the government presented evidence which showed that the

Mandarin Restaurant was a business engaged in interstate commerce and that its

assets were depleted by the robbery. Mr. Sun testified that, before the robbery,

the restaurant had often purchased specialty food products from vendors in

California, Missouri, and Oklahoma, and that the money stolen by Defendant

would have been used to purchase more of those items. He testified that the

restaurant purchased fewer out-of-state items after the robbery, in part because it

closed for twenty-two days and also because business decreased significantly after

it reopened due to customers’ fears about dining at the restaurant. Mr. Sun also

testified that purchases by customers using out-of-state credit cards declined after

the robbery. According to Mr. Sun’s testimony, the business eventually failed as

a result of the robbery because he could not run the restaurant himself, attract

customers, or generate revenue, and, therefore, he could not purchase supplies in

interstate commerce for the restaurant. An FBI agent confirmed Mr. Sun’s

statements, testifying that credit card sales declined and business revenues

decreased after the robbery. We conclude that the record evidence and the

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inferences therefrom demonstrated the requisite effect on interstate commerce.

Defendant claims that the murder of Mrs. Sun, which was committed during

the robbery, should not be considered as proof of the effect of the robbery on

interstate commerce. The government may show the effect-on-commerce

requirement not only by the effect of stolen money on interstate commerce but

also by evidence showing an “interference ‘ in any way or degree ’ . . . by robbery

or extortion.” United States v. Boston , 718 F.2d 1511, 1516 (10th Cir. 1983)

(further emphasis added) (quoting 18 U.S.C. § 1951(a)), cert. denied , 466 U.S.

974 (1984); cf. United States v. Paredes , 139 F.3d 840, 844-45 (11th Cir. 1998)

(holding that meager evidence showing use of firearm purchased out of state and

victims’ sale of merchandise manufactured out of state was sufficient to

demonstrate robbery’s minimal effect on commerce); United States v. Castleberry ,

116 F.3d 1384, 1388-89 (11th Cir.) (discussing evidence presented to show effect

on commerce of extortion), cert. denied , U.S. , 118 S. Ct. 341 (1997).

Events which occur during the course of a possible Hobbs Act robbery may affect

interstate commerce. Consider, for example, if Defendant robbed the Mandarin

when it was full of customers and, during the course of that robbery, he

threatened and frightened many loyal customers. Perhaps his actions against

those customers constituted assault under state law. In this scenario, the

customers then testify at trial that they were too frightened to ever return to the

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restaurant and Mr. Sun testifies that the loss of loyal customers affected his

ability to generate income and purchase goods in interstate commerce. Under the

language of the Hobbs Act, this hypothetical testimony of the customers and Mr.

Sun would be appropriate evidence showing an effect of the robbery on interstate

commerce. See 18 U.S.C. § 1951(a).

Testimony relating to the murder committed during the course of the

robbery of the Mandarin is no different from this hypothetical testimony, even if

the murder constitutes a separate crime. Mr. Sun’s testimony and other evidence

recited above indicates that a nexus existed between the loss of the business and

Mrs. Sun’s death. Her murder, committed during the course of the robbery, was a

consequence of the robbery that could be considered for its effect on interstate

commerce. Testimony indicating that fewer customers patronized the restaurant

after the robbery and murder, that Mr. Sun could not run the business by himself

without the assistance of his wife, and that business steadily declined until Mr.

Sun had to close his restaurant constitutes appropriate evidence showing the

robbery’s impact on interstate commerce.

The money stolen from Mrs. Sun’s purse also could legitimately be

considered for its effect on interstate commerce. The money was stolen during

the course of the robbery of the restaurant. It was taken from Mrs. Sun’s purse

which was located inside the restaurant and which belonged to the co-owner and

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operator of a business engaged in interstate commerce. The aggregate impact of

the theft of the restaurant money, the decline in credit card sales and business

revenue, and the temporary closing after the robbery, the murder of Mrs. Sun, and

the money stolen from her purse establishes more than a minimal nexus to

interstate commerce. See Wickard v. Filburn , 317 U.S. 111, 127-29 (1942). We

affirm Defendant’s conviction on Count 1.

Defendant also contends that the evidence was insufficient to convict him

of aiding and abetting the murder of Mrs. Sun in Count 2. He argues that,

although he intended to commit the robbery, the government failed to prove

malice aforethought, the level of intent necessary to prove murder and aiding and

abetting murder under 18 U.S.C. §§ 2 & 1111(a). He asserts that there was no

proof that he planned or intended to murder anyone or that he encouraged his co-

defendant to kill Mrs. Sun.

One is guilty of violating 18 U.S.C. § 924(j)(1) 1
if he caused the death of a

person while using a firearm to commit a crime of violence in violation of section

18 U.S.C. § 924(c)(1). The evidence unequivocally showed that co-defendant Mr.

Chanthadara violated 18 U.S.C. § 924(j) by shooting Mrs. Sun during the course

of the robbery. This killing constitutes a felony murder under 18 U.S.C.

1
The statute under which Defendant was charged and convicted, 18 U.S.C.
§ 924(i)(1), has been changed to 18 U.S.C. § 924(j)(1). For the sake of future
clarity, we refer to section 924(i) as section 924(j).

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§ 1111(a). The statute defines murder as the “unlawful killing of a human being

with malice aforethought,” and characterizes felony murder as first degree murder

which is “[e]very murder . . . committed in the perpetration of, or attempt to

perpetrate, any [of the listed felonies].” 18 U.S.C. § 1111(a); see United States v.

Kayarath , 962 F. Supp. 1399, 1401 (D. Kan. 1997); see also United States v.

Tham , 118 F.3d 1501, 1508 (11th Cir. 1997). We have interpreted section

1111(a) and the felony murder doctrine to mean that a person who commits a

dangerous felony, such as a robbery, “is guilty of murder if a death occurs during

the commission of [the] felony.” Montoya v. United States Parole Comm’n , 908

F.2d 635, 638 (10th Cir. 1990) (also stating that felony murder “allow[s]

conviction for a death that was unintended and unforeseen”) .

The essence of Defendant’s argument is that the government must establish

some proof of state of mind other than the intent to commit the robbery and the

fact that the killing occurred during the commission of the robbery. The federal

murder statute’s definition of felony murder does not require the government to

prove any intent other than that the killing was committed in the course of the

underlying felony. See 18 U.S.C. § 1111(a). Therefore, in this case, once the

government has shown that Defendant intended to commit the robbery and that a

killing occurred in the course of that robbery, no additional proof of state of mind

is necessary. This analysis is supported by our statements in Montoya and is not

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inconsistent with Sides . See Montoya , 908 F.2d at 639 (stating that malice

aforethought “is supplied by [the intent to commit] the robbery”); accord United

States v. Flores , 63 F.3d 1342, 1371 (5th Cir. 1995), cert. denied sub nom. Garza

v. United States , U.S. , 117 S. Ct. 87 (1996); United States v. Thomas , 34

F.3d 44, 48-49 (2d Cir.), cert. denied sub nom. Morales v. United States , 513 U.S.

1007 (1994); cf. United States v. Chischilly , 30 F.3d 1144, 1160 (9th Cir. 1994)

(stating that commission of underlying felony substitutes for malice

aforethought), cert. denied , 513 U.S. 1132 (1995); United States v. Sides , 944

F.2d 1554, 1558 (10th Cir.) (holding that defendant was guilty of aiding and

abetting murder because he intended to commit a dangerous felony and continued

to participate in the felony despite being aware of a serious risk of death), cert.

denied , 502 U.S. 989 (1991).

In this case, the evidence before the jury undoubtedly showed the requisite

intent for a conviction under Count 2. The record indicates that Defendant

admitted to participating in the armed robbery which resulted in the killing of

Mrs. Sun. The government did not need to show that Defendant had any specific

intent to kill Mrs. Sun. We emphasize that the government also presented

sufficient evidence that Defendant aided and abetted the killing of Mrs. Sun. The

record indicates that Defendant held Mrs. Sun at gunpoint, brought her upstairs,

and beat her. Defendant committed these acts knowing that his co-defendant, Mr.

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Chanthadara, was armed, was present in the room where Defendant beat Mrs. Sun,

and was often violent and uncontrollable. These facts show that Defendant

initiated and participated in the assault which led to the death of Mrs. Sun even

though he was aware of his co-defendant’s propensity for violence. The evidence

also shows that Defendant did not leave the room after he beat Mrs. Sun but was

present when his co-defendant shot her five times and that Defendant and co-

defendant Mr. Chanthadara came downstairs and left the restaurant together. It is

reasonable to infer from this evidence that Defendant’s participation in the

robbery and in the assault on Mrs. Sun incited or encouraged his co-defendant’s

murder of Mrs. Sun. We affirm Defendant’s conviction on Count 2 because the

record contains abundant evidence to enable a jury to find beyond a reasonable

doubt that Defendant intended to commit the underlying felony, that Mrs. Sun was

killed during the commission of that felony, and that Defendant aided and abetted

that killing.

III. Constitutionality of 18 U.S.C. § 924(c) & (j)(1) 2

Defendant asserts that his conviction on Count 2 should be reversed

because Congress exceeded its authority under the Commerce Clause in enacting

2
As we noted previously, section 924(j) is the former section 924(i) cited
by the parties in their briefs.

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18 U.S.C. § 924(c) & (j)(1). Defendant, citing the Supreme Court’s decision in

Lopez , 514 U.S. 549, argues that the statute does not contain an independent

jurisdictional element and does not regulate or effect interstate commerce. The

statute “simply criminalizes federally the use of a firearm in connection with a

crime of violence . . . and the murder of someone killed with a firearm during

such a crime of violence.” Appellant’s Br. at 33.

Section 924(j)(1) reads:

A person who, in the course of a violation of subsection (c),
causes the death of a person through the use of a firearm, shall–

. . . if the killing is a murder (as defined in section 1111), be
punished by death or by imprisonment for any term of years or for
life.

To be convicted of aiding and abetting a murder in violation of section 924(j)(1),

Defendant must have first violated section 924(c)(1) by using or carrying a

firearm during and in relation to a crime of violence. That requirement has been

met because we held above that the evidence supported the crime of violence, an

armed robbery, and its impact on interstate commerce under the Hobbs Act. This

court has upheld the constitutionality of the Hobbs Act in the face of a Commerce

Clause challenge. See Bolton , 68 F.3d at 398-99. In Bolton , we also upheld the

validity of the defendant’s section 924(c) convictions because the section 924(c)

crime of violence was dependent on Hobbs Act jurisdiction. See id. at 399 n.2.

Bolton has been interpreted as affirming the constitutionality of section 924(c)(1)

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“insofar as it prohibits the use or carrying of a firearm during or in relation to a

crime of violence.” United States v. Crump , 120 F.3d 462, 466 (4th Cir. 1997)

(interpreting Bolton and upholding the constitutionality of section 924(c)(1) in

relation to drug trafficking crimes). Several other circuits have rejected

Commerce Clause challenges to section 924(c)(1). See United States v. Walker ,

142 F.3d 103, 111 (2d Cir. 1998) (holding that section 924(c)(1) is valid exercise

of Commerce Clause power because its crimes of violence and drug trafficking

crimes are activities that substantially affect interstate commerce); United States

v. Harris , 108 F.3d 1107, 1109 (9th Cir. 1997) (same as to crime of violence);

United States v. Staples , 85 F.3d 461, 463 (9th Cir.) (same as to drug trafficking

crime), cert. denied , U.S. , 117 S. Ct. 318 (1996); United States v. Brown ,

72 F.3d 96, 97 (8th Cir. 1995) (same), cert. denied , 518 U.S. 1033 (1996). We

agree with our sister circuits and, in light of any uncertainty about Bolton , we

now explicitly uphold Congress’ exercise of its Commerce Clause power in

enacting 18 U.S.C. § 924(c)(1).

We also uphold the constitutionality of 18 U.S.C. § 924(j). In this case,

the robbery represents the crime of violence which is a necessary element of the

section 924(j) offense charged in Count 2. Because Defendant’s section 924(j)

conviction is predicated on his conviction under the Hobbs Act for an armed

robbery that affected interstate commerce, we reject his Lopez challenge to

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section 924(j). See United States v. Lopez , 2 F.3d 1342, 1348 n.10 (5th Cir.

1993), aff’d , 514 U.S. 549 (1995). The section 924(j) conviction properly relied

upon the interstate commerce nexus requirement of the robbery conviction. In

other words, the jurisdictional requirement of the underlying crime of violence in

section 924(c) creates a sufficient nexus to interstate commerce for section 924(j)

as well.

IV. Jury Instructions

Defendant argues that the district court’s jury instructions were improper

and misled the jury. We review a district court’s decision whether to give a

particular instruction for abuse of discretion. See United States v. Swallow , 109

F.3d 656, 658 (10th Cir. 1997). In reviewing jury instructions to which an

objection was made at trial, we apply a de novo standard “to determine the

propriety of [those] . . . instruction[s].” United States v. Mullins , 4 F.3d 898, 900

(10th Cir. 1993). Essentially, we must determine “whether the jury, considering

the instructions as a whole, was misled.” Id.

Defendant contends that the court erred in refusing to instruct the jury that

it could not consider the effect on interstate commerce of both the murder of Mrs.

Sun and the money stolen from Mrs. Sun’s purse. We reject this challenge for

two reasons. First, we determined above that evidence of Mrs. Sun’s murder was

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appropriately considered in determining whether the robbery had an effect on

interstate commerce under the Hobbs Act. As we previously stated, her death is a

consequence of the robbery which could be considered for its impact on interstate

commerce. Second, the jury also could appropriately consider the money stolen

from Mrs. Sun’s purse for its impact on interstate commerce. The money was

stolen during the course of the robbery of the restaurant from Mrs. Sun’s purse

located inside the restaurant. More importantly, the money was stolen from the

purse that belonged to an owner and operator of a business engaged in interstate

commerce. These facts distinguish the cases relied on by Defendant, United

States v. Quigley , 53 F.3d 909, 910 (8th Cir. 1995), and United States v. Collins ,

40 F.3d 95, 100 (5th Cir. 1994), cert. denied , 514 U.S. 1121 (1995), which

involved individuals not directly or actively engaged in interstate commerce at the

time of the robbery. The court did not abuse its discretion in refusing to instruct

the jury that it could not consider the murder of Mrs. Sun and the money stolen

from her purse for their effects on interstate commerce.

Defendant also contends that the district court erroneously instructed the

jury that his actions, i.e., the robbery, could have a “potential” or “probable”

effect on interstate commerce rather than an actual effect. Appellant’s Opening

Br. at 45. The court instructed the jury that the government must establish

beyond a reasonable doubt that “[a]s a result of the defendant’s actions, interstate

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commerce, or an item moving in interstate commerce, was actually or potentially

delayed, obstructed, or affected in any way or degree.” R., Vol. III, Doc. 189 at

Instr. No. 9. The court also instructed:

If you find that the defendant intended to take certain actions--that is,
he did the acts charged in the indictment in order to obtain property--
and you find those actions have either caused, or would probably
cause, an effect on interstate commerce, then you may find the
requirements of this element have been satisfied.

Id. at Instr. No. 11. The court stated that Defendant did not need to intend to

affect interstate commerce but that the effect on interstate commerce may be a

natural consequence of his actions. Id.

The use of the words actual, potential, and probable explain to the jury the

type of effects on interstate commerce that the government must show to meet the

jurisdictional requirement under the Hobbs Act. These words represent the kind

of aggregate or cumulative impact that is the linchpin of the interstate commerce

nexus established in Wickard , 317 U.S. at 127-28. See Lopez , 514 U.S. at 558-

60, 567. Under an aggregate or cumulative analysis, and in the context of the

instructions as a whole, the words probable and potential indicate to the jury that,

like the wheat in Wickard , the government is not required to show that the

particular stolen dollars themselves would have entered the stream of interstate

commerce. Instead, the government must show only that the stolen dollars

depleted the total assets of the restaurant which were available to engage in

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interstate commerce.

We have held that a depletion of assets potentially affecting interstate

commerce constitutes a sufficient nexus to interstate commerce under the Hobbs

Act. See Zeigler , 19 F.3d at 490. To establish this de minimis effect on interstate

commerce the government must show that the crime depleted the assets of a

business engaged in interstate commerce, “thereby curtailing the victim’s

potential as a purchaser of goods.” 3
Id. at 489-90; accord United States v. Stillo ,

57 F.3d 553, 558-60 (7th Cir.) (holding that evidence and instructions are

sufficient to support jury finding that extortion could potentially deplete assets

used in interstate commerce), cert. denied , 516 U.S. 945 (1995); United States v.

Brown , 959 F.2d 63, 67-68 (6th Cir. 1992) (stating that especially in cases of

attempted crimes, the government may prevail by showing “that there was a

realistic probability that the activity would have affected interstate commerce”);

United States v. Curcio , 759 F.2d 237, 241-42 (2d Cir.) (stating that effects of

defendant’s extortion on interstate commerce need be only “potential or subtle”),

cert. denied sub nom. Hawley v. United States , 474 U.S. 848 (1985); cf. Quigley ,

53 F.3d at 910 (discussing direct effect on commerce required in most cases and

3
Defendant’s argument that the use of the potential or probable language is
limited to extortion or attempt cases is invalid in light of our approval in Zeigler
of the potential “depletion of assets” effects on interstate commerce. Zeigler was
not an attempt or extortion case but involved multiple completed robberies. See
19 F.3d at 489-90.

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realistic probability of an effect sufficient in extortion case).

The use of the word “probable” in the instructions also represents to the

jury its ability to make a determination based on the likelihood that the robbery

affected interstate commerce. Cf. Zeigler , 19 F.3d at 496 (Ebel, J., dissenting)

(construing issue before court in robbery case as “whether the jury was provided

adequate evidence to conclude that . . . it [was] likely, beyond a reasonable

doubt, that each of the robberies affected interstate commerce”). This is one way,

if not the best way, to explain that a robbery injury to the assets of a business

engaged in interstate commerce is sufficient to satisfy Wickard ’s rule of

aggregate impact and the Hobbs Act de minimis jurisdictional requirement. See

Bolton , 68 F.3d at 397-400 (holding that under the asset depletion theory, robbery

or extortion of small amounts of money from businesses that purchase goods from

another state has a sufficient potential aggregate effect on interstate commerce).

Defendant’s reliance on United States v. Levine , 41 F.3d 607, 613 (10th Cir.

1994), is misguided because Levine determined when an effect on interstate

commerce has to occur, not whether it actually occurs or has the potential to

occur. See United States v. Grey , 56 F.3d 1219, 1224 (10th Cir. 1995) (stating

that effect must occur at or after the defendant’s activity, not before it).

The government correctly points out that this court approved a jury

instruction in which the government was required to prove that the defendant

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“actually or potentially obstructed, delayed, or affected interstate commerce or

attempted to do so.” Boston , 718 F.2d at 1516. Although the validity of this

instruction does not appear to have been directly challenged in Boston , we cannot

now say that the court in this case erred in repeating essentially the same

instruction. The court’s inclusion of the words probable and potential in the

instructions, while perhaps not the best way to explain to the jury the interstate

commerce requirement, did not constitute error. The jury was properly instructed

and was not misled.

Finally, Defendant asserts that the court’s instruction on malice

aforethought “prejudicially collapsed the separate elements of ‘robbery’ and

‘malice’ into a single element” for Count 2. Appellant’s Opening Br. at 47. The

court instructed the jury that “[a] killing is done with malice aforethought when it

is done deliberately and with the intent to kill another person, or if it results from

the commission of a robbery.” R., Vol. III, Doc. 189 at Instr. No. 17. The latter

part of this instruction essentially parallels the definition of felony murder under

18 U.S.C. § 1111(a): “Every murder . . . committed in the perpetration of, or

attempt to perpetrate, any [listed felony such as a robbery].”

As in his sufficiency of the evidence argument, Defendant claims that, to be

convicted of Count 2, the government must present proof of his state of mind

which is in addition to and separate from his intent to commit the underlying

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felony and the proof that a killing occurred during the commission of that felony.

In accordance with our discussion above, Defendant’s argument has no merit.

The statute does not require any proof of intent other than that Defendant

intended to commit the underlying felony and that the killing was committed in

the course of that felony. Therefore, a charge of felony murder does not entitle

Defendant to an instruction requiring additional or independent proof of state of

mind. The instruction in this case comports with the felony murder definition that

all killings committed in the perpetration of a robbery constitute first degree

murder. See 18 U.S.C. § 1111(a); Montoya , 908 F.2d at 638-39 (stating that “one

is guilty of murder if a death occurs during the commission of a felony”) ; see also

Schad v. Arizona , 501 U.S. 624, 640-41 (1991) (stating that “the intent to kill and

the intent to commit a felony were alternative aspects of the single concept of

‘malice aforethought’” and that “statutes have in most cases retained premeditated

murder and some form of felony murder (invariably including murder committed

in perpetrating . . . a robbery) as alternative means of satisfying the mental state

that first-degree murder presupposes”); Thomas , 34 F.3d at 48-49 (approving an

instruction which was virtually identical to the one in this case).

Defendant’s claims are also supplanted by the court’s separate instructions

to the jury which described what the government must show to establish that

Defendant aided and abetted the killing of Mrs. Sun, see id. at Instr. No. 18, and

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which articulated the elements of a robbery, a Hobbs Act crime, and a violation of

18 U.S.C. § 924(c), see id. at Instr. Nos. 8, 13-15. Further, the court explained

the distinct elements that the government must prove to sustain its burden of

proof in Count 2. See id. at Instr. No. 16. We believe that the instructions as a

whole properly defined the state of mind required to prove a violation of 18

U.S.C. § 924(j)(1) and felony murder and did not prejudice Defendant.

Defendant’s convictions are AFFIRMED.

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