United States v. Wiseman

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 5 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
No. 97-2301
v.

LONNIE RAY WISEMAN,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CR-96-72-JC)

Jacquelyn Robins, Albuquerque, New Mexico, for Defendant-Appellant.

Sam Winder, Assistant U.S. Attorney (John J. Kelly, United States Attorney, with
him on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.

Before MURPHY, HOLLOWAY and MAGILL, * Circuit Judges.

HOLLOWAY, Circuit Judge.

*
The Honorable Frank J. Magill, United States Circuit Judge for the Eighth
Circuit, sitting by designation.
 This is a direct appeal from convictions and a sentence in a criminal case. Our

jurisdiction is conferred by 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

Defendant/appellant Lonnie Ray Wiseman was convicted by a jury on each count of

an eight count indictment based on a series of robberies of grocery stores in New

Mexico. Wiseman had been indicted jointly with Thomas Martin, with all counts

alleged against each of them. The district judge ordered the cases severed for trial,

after which Martin entered into a plea agreement. 1
Martin did not testify at

Wiseman’s trial, however. Defendant Wiseman was convicted and received, inter

alia , a sentence of imprisonment overall of 595 months.

I

The evidence at trial, including some statements from a confession by

Wiseman, taken in the light most favorable to the jury’s guilty verdicts on all counts,

showed generally as follows: The series of crimes for which Wiseman was convicted

began in Santa Fe, New Mexico, on September 22, 1995, when he and Martin robbed

a grocery store, getting away with $4,000 or $5,000. 2
Two witnesses who were

working in the Santa Fe store at the time of the robbery testified at trial: Sandy

Zamora, the first employee approached in the store, and Angie Montoya, who assisted

1
We have previously vacated the restitution order imposed on Martin. United
States v. Martin , 145 F.3d 1347 (table), 1998 WL 292400 (10 th
Cir. 1998).
2
The jury was not told that Wiseman and Martin had escaped from custody in
Idaho and made their way to New Mexico just before beginning the series of grocery
store robberies.

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in putting money in a bag. Ms. Zamora described the first man who approached her

as about five feet, six inches tall, with “dirty blond” hair, a thin build and a thin face.

V R. at 32. She also saw a second man, taller and dark looking, but didn’t see his

face. Id. at 33. Ms. Montoya only saw one man, the one who had approached

Zamora, and was only able to describe him as Anglo with hair that was “a dirty blond,

almost a light brown.” Id. at 41. Neither of these witnesses attempted to identify

defendant Wiseman at trial.

The day after the Santa Fe robbery, a grocery store in Taos was robbed and

about $6,000 or $7,000 was taken. Katherine Duran was working at the cash register

when the manager yelled that he had been robbed. Id. at 54. Ms. Duran went out into

the parking lot to see if she could see a car leaving. She saw two men walking to a

maroon or reddish car. She saw “a blond guy and a Spanish guy.” Id. at 50. The one

who “looked like he was Hispanic” was “just a big guy” and was “taller than the other

one.” Ms. Duran realized that the shorter, fairer man was one she had noticed when

he first entered the store. He had walked right past her. She testified that she was

able to identify Wiseman at trial because when she first saw him, before the robbery,

“I was checking out the blond guy, and that’s how I knew it was him.” Id. at 58-59.

Ms. Duran had previously identified a photo of Wiseman from a photo array shown

to her by officers about three months after the robbery.

Wiseman and Martin next robbed a grocery store in Carlsbad on October 8,

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1995, getting away with $2,500 to $3,000. Merced Carrasco was a manager at the

store and at about 10:30 p.m. was working at a cash register when a man came

through to purchase a couple of items. A few minutes later the same man came back

into the store and approached Carrasco. The man showed a pistol and said, “We are

going to rob your store.” They went to the service booth where the safe was kept, and

Carrasco emptied all of the bills into a grocery bag. Carrasco also saw a second man,

whom he described as Hispanic and an inch or two over six feet tall. The second man

did not display a weapon. Carrasco identified defendant Wiseman as the robber who

had first approached him and who had made a purchase from him just minutes before

that. Id. at 75-80. Carrasco had also identified a picture of Wiseman from a photo

array shown to him by an officer about two months after the robbery. Id. at 88.

On October 13, 1995, Wiseman and Martin robbed a grocery store in

Alamogordo and made away with about $20,000. Larry Clark was an assistant

manager at that store and was in the office at about 11:00 p.m. when a man came into

the office. The man lifted his shirt to show a pistol in his waistband, which he

clutched and shook. The man demanded all of the money. Two other people were in

the office, and the three employees loaded the money into bags. During this process,

Clark looked up and saw a man standing on the outside of the window to the service

booth. This man placed a gun on the counter. The first man was Anglo, with brown-

blond hair. The other man was Hispanic. Clark identified Wiseman at trial. He also

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picked a photograph of Wiseman from the array shown to him by officers some weeks

after the robbery. Id. 98-103. Clark was shown two pistols, Exhibits 3 and 4, which

he said looked like the guns used in the robbery. Id. at 103-04. (Those pistols were

later identified as two air pistols which were in the car in which Wiseman had been

a passenger just before his arrest in Arkansas in late November 1995, as discussed

below.)

The fifth robbery committed by the pair in New Mexico was in Silver City on

November 7, 1995, where $3,000 or $4,000 was taken. Marty Martinez was an

assistant manager at that store and was approached by a man with a gun who ordered

him to open the safe. Martinez was not able to describe the man except to say that

he was “light-complected” but with a “pretty good tan, like he worked outside,” and

had “light brownish” hair. He also saw a slight scar on his face. While the robbery

was going on, Martinez looked around the store and saw a “dark and heavyset” man,

who opened his coat to show that he was holding a gun. Martinez identified Exhibit

4 as being like the pistol carried by the first man. Martinez identified Exhibit 7 (later

proved to have been a “Tec-9" which had been thrown from the car in which Wiseman

was riding just before his arrest in Arkansas) as the type of gun the second man had

shown during the robbery. VI R. at 215-19. Martinez said he would not be able to

identify the robber if he were to see him again. He had not made an identification

from the photo array he had been shown, either.

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 The sixth and final robbery charged occurred on November 15, 1995, in Clovis,

with more than $5,000 being taken. William Bargman, a store manager, testified at

trial that the robbery occurred at about 3:00 p.m. Bargman and two other employees

were talking in an aisle when a man approached and asked if one of them was the

manager. Bargman said that he was and shook hands with the man, asking what he

could do for him. The man opened his jacket to show that he was carrying a gun and

said, “This is a real gun, this is a real robbery.” Bargman looked around to see

another man who opened his jacket to show that he was carrying a gun. Bargman’s

description of the first man was “slight built, sandy brown hair, mustache.” He

estimated the man’s height at five feet four inches. The second man was over six feet

tall and over 250 pounds. Bargman identified Wiseman as the first of the two robbers

and identified Exhibit 7 as the gun carried by the second man. V R. at 112-116. 3

About two weeks after the last of these six robberies, Martin and Wiseman

were approached by a state trooper in Arkansas as they were stopped at a service

station or a convenience store. The two men fled from the trooper and a high speed

chase ensued. During the chase, the authorities saw the suspects throw a duffle bag

out of the car. When the bag was later recovered it was found to have cash and a

3
As will be discussed below, after their arrests both Wiseman and Martin
stated that they had used only air pistols in at least the first few robberies. Two air
pistols which were recovered at the time of Wiseman’s arrest were introduced in
evidence at his trial and were described by witnesses as replicas which closely
resembled actual firearms.

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semi-automatic firearm of the kind known as a Tec-9. The pursued car finally ran off

the road, at which time defendant was taken into custody, but only after he first had

attempted to run back to the car and officers had fired at least three shots at him. VI

R. at 209-13. Martin avoided capture at that time but was later arrested near Abilene,

Texas. After Wiseman’s arrest, two air pistols were recovered from the car in which

he had been riding, which were introduced at trial and identified by some of the

witnesses to the robberies, as we have noted.

After his arrest, Wiseman was treated briefly at a local hospital for the minor

injuries he had sustained when the car went off the road, then taken to a local jail.

The next day, beginning at about 11:30 a.m., he was questioned for several hours by

members of the Arkansas State Police, the Fayetteville Police, and F.B.I. Special

Agent Mark Jessie. At first, Wiseman claimed that his name was Leonardo Hirsch

and denied any role in any robberies. He ultimately gave a detailed statement which

included admissions to five of the six New Mexico robberies. At trial, Agent Jessie

testified to the substance of Wiseman’s statement, including the admissions that he

and Martin had committed the robberies in Santa Fe, Taos, Carlsbad, Alamogordo,

and Silver City. V R. at 131-35. 4
Jessie testified that at some point after the advice

of rights form was signed by Wiseman, “[h]e proceeded to confess to the armed

4
The record contains no explanation for the fact that Wiseman’s confession
does not include any reference to the Clovis robbery.

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robberies of five grocery stores in New Mexico,” id. at 131, his confession not

mentioning the Clovis robbery, id. at 135.

The defense called four witnesses at trial, all of them law enforcement officers.

Detective Byrd of the Alamogordo Police testified that he interviewed Larry Clark,

manager of the store which was robbed in that city, shortly after the robbery. In that

interview, Clark told Byrd that he had noticed a man, the same man who later robbed

the store, whom he suspected might be a shoplifter. Clark had said that he followed

the man to the liquor section of the store.

The defense then called Sergeant Trujillo of the Alamogordo police who had

also participated in the investigation of the robbery there. Trujillo testified that he

had collected a number of items which might have been handled by the robber and

had them tested for fingerprints. No fingerprints of either Martin or Wiseman were

identified from any of the items. Trujillo also testified that he had contacted other

officers investigating other robberies, including Detective Wilkinson of Carlsbad, and

shared information about robberies in Taos and Santa Fe. Trujillo also testified that

he talked with an officer in Gallup about the arrest of a man there who was

considered a possible suspect in the string of grocery store robberies. Trujillo also

had contact with authorities in Silver City and Clovis.

Detective Crews of Fayetteville, Arkansas testified that he took photos of

Wiseman, and that another photo was taken by another officer on December 1, 1995.

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It was the photo taken by the other officer which was used in the photo array shown

to witnesses of the robberies.

A further defense witness was Detective Dodd of the Arkansas State Police.

Dodd testified that he had contact with Trujillo, Wilkinson, and Detective Gully of

Clovis on November 30, 1995. Dodd was then present for some of the interrogation

of Wiseman on November 30, including interrogation by Agent Jessie of the F.B.I.

Testimony of Manny Trujillo, a Taos detective, taken earlier, was read to the jury.

He said that Katherine Duran picked out photo 2 from the array; that he had not asked

her whether she had seen any news coverage about any arrests, nor did she volunteer

such information; and Trujillo’s testimony was the same as to one other witness. VI

R. 259-60.

In closing argument, defense counsel argued, inter alia , that the conditions of

the interrogation suggested that Wiseman was “broken down” and merely repeated

what the officers said, the officers having obtained the basic information on the

robberies through their contacts with the New Mexico officers. Counsel argued that

the “purported” confession included no details of the crimes other than what the

interrogators already knew from talking with the New Mexico authorities.

The indictment against Wiseman and Martin charged six counts of robbery

affecting interstate commerce in violation of the Hobbs Act, 18 U.S.C. § 1951(a), and

two counts of using a firearm during a crime of violence, in violation of 18 U.S.C. §

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924(c)(1). The indictment alleged that the Tec-9 weapon had been used in the last

two robberies; no use of firearms was charged in the first four robberies.

II

Wiseman contends that the district court erred in denying his motion to dismiss

the indictment. In that motion Wiseman had contended, as he does on appeal, that the

grand jury proceedings were tainted by prosecutorial misconduct. He alleged that the

prosecutor had improperly “testified” as to the effect of the robberies on interstate

commerce and had improperly relied on a ruling of the Chief Judge of the District of

New Mexico in her attempt to meet the requirement that the robberies affected

interstate commerce. The prosecutor had told the grand jurors that a grocery store

may be owned by an out of state chain and might have investors from other states.

Then she said that in a recent case the Chief Judge had held that a robbery of a single

restaurant in Taos affected interstate commerce because the restaurant obtained

supplies from out of state and many of its customers were tourists from other states.

Although it is not proper for a prosecutor to testify before the grand jury, we

believe that the remarks at issue here merely indicated the kind of evidence which

could support a finding of probable effect on commerce, in the course of the

prosecutor’s legitimate effort to explain to the grand jurors the somewhat arcane basis

for federal jurisdiction under the Hobbs Act. After the prosecuting attorney’s

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introductory remarks, the grand jury heard testimony from an investigating agent that

all of the stores in question obtained most of their supplies from sources outside New

Mexico. We feel that the reference to the ruling of the Chief Judge was not

prejudicial in light of the evidence presented.

Additionally, the defendant alleges prejudice from testimony regarding how he

and Martin had spent some of the stolen money. During the testimony of agent

Magill, the prosecutor asked whether Wiseman and Martin had indicated how they

had spent the stolen money. The agent replied that the two had said they used the

funds to live in hotels and motels, to buy crack cocaine and to go to strip clubs.

We are not convinced that this line of questioning was improper. The question

had first been suggested by a grand juror and was repeated by the prosecutor when the

witness did not initially respond directly to the question. The grand jury had heard

evidence that Wiseman and Martin were charged with six robberies and had been told

the approximate amount taken in each instance. The amount of money recovered

when Wiseman and Martin were apprehended was much less than the total they had

stolen in the series of robberies. Thus, we think the question was within the broad

range of relevance at this stage of the proceeding as having a bearing on the totality

of the circumstances regarding the crimes charged and the supporting evidence.

We conclude that no error has been shown. Moreover, even if we were of the

view that there had been some misconduct by the prosecutor in the grand jury

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proceedings, we are convinced that we could provide no relief to defendant on review

of his conviction. Defendant argues that the indictment should have been dismissed

because the prosecutorial misconduct prejudiced him by influencing the decision to

indict. Defendant relies on Bank of Nova Scotia v. United States , 487 U.S. 250

(1988), but his reliance is misplaced because the question whether the decision to

indict was affected is not the focus of our review after a verdict of guilty has been

rendered at trial. In considering whether an indictment should have been dismissed

on grounds of prosecutorial misconduct before the grand jury, we first

must determine whether the claimed errors should be characterized as
technical or procedural and affecting only the probable cause charging
decision by the grand jury, or whether the alleged errors should be
characterized as threatening the defendant’s right to fundamental
fairness in the criminal process. If the errors can be characterized as
procedural violations affecting only the probable cause charging decision
by the grand jury, then the defendant must have successfully
challenged the indictment before the petit jury rendered a guilty
verdict.

United States v. Kilpatrick , 821 F.2d 1456, 1466 (10 th
Cir. 1987) (emphasis added),

aff’d sub nom. Bank of Nova Scotia v. United States , 487 U.S. 250 (1988). When, as

here, the defendant has been convicted,

the petit jury’s subsequent guilty verdict means not only that there was
probable cause to believe that the defendants were guilty as charged, but
also that they are in fact guilty as charged beyond a reasonable doubt.
Measured by the petit jury’s verdict, then, any error in the grand jury
proceeding connected with the charging decision was harmless beyond
a reasonable doubt.

United States v. Mechanik , 475 U.S. 66, 70 (1986).

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 As the quoted passage from our Kilpatrick opinion recognizes, there are some

cases in which errors occurring in the grand jury proceedings are deemed

“fundamental.”

These cases may be explained as isolated exceptions to the harmless-
error rule. We think, however, that an alternative and more clear
explanation is that these cases are ones in which the structural
protections of the grand jury have been so compromised as to render the
proceedings fundamentally unfair, allowing the presumption of
prejudice.

Bank of Nova Scotia , 487 U.S. at 256-57; see also United States v. Lopez-Gutierrez ,

83 F.3d 1235 at 1245 (10 th
Cir. 1996).

We think it clear that the errors complained of here (assuming that there were

errors at all) are instead “technical errors which, at most, could have affected only the

grand jury’s determination of probable cause.” Lopez-Gutierrez , 83 F.3d at 1245.

Because the petit jury convicted on all counts and, as explained below, because the

trial evidence was sufficient to support the verdicts, the question whether there was

probable cause for the indictment is moot.

III

Wiseman asserts that his confession should have been suppressed. Within this

argument, defendant attacks several rulings by the district court. Defendant first

raised this issue by means of a motion to suppress, filed by the attorney first

appointed to represent him. That attorney was later permitted to withdraw and present

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counsel was appointed in his stead. Counsel then filed a motion to re-open the

hearing and to reconsider the motion to suppress. Counsel also filed a motion in

limine to prohibit introduction of the defendant’s statements. Wiseman now contends

that the district court’s adverse rulings on all of these motions were erroneous.

We first consider defendant’s argument that he did not voluntarily waive his

rights to remain silent and to consultation with an attorney before making the

statements at issue. Defendant testified at the suppression hearing that he was

exhausted during the interview and that the officers had to keep waking him up after

each question. He said that he had not slept since his arrest and had slept only about

three hours all together in the three or four days before his arrest. Wiseman testified

that he was still under the effects of crack cocaine that he had smoked only minutes

before the car chase began. He also testified that he asked for an attorney when it

became clear to him that the officers did not believe that he was Leonardo Hirsh and

that he said he did not want to be questioned any more at that time. When shown two

waiver of rights forms which the officers had testified that he had signed during the

interrogation, Wiseman said that he did not remember signing in his own name and

that the signatures, while similar to his, did not look quite right.

The ultimate question of the voluntariness of a confession is one of law, to be

reviewed de novo, but the district court’s underlying findings of fact must be accepted

unless they are clearly erroneous. United States v. Hernandez , 93 F.3d 1493, 1501

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(10 th Cir. 1996); United States v. Short , 947 F.2d 1445, 1449 (10 th
Cir. 1991). Here,

the district judge expressly found that defendant’s testimony was not credible and that

the agents’ testimony was credible. The government’s evidence at the suppression

hearing, from F.B.I. Agent Jessie and others, was to the effect that no threats or

promises were made; that defendant Wiseman spoke articulately; and that there was

no indication that he was impaired by his recent drug use or by injuries sustained

when the car ran off the road just prior to his apprehension. Agent Jessie did testify

that Wiseman was visibly tired and repeatedly fell asleep during the last hour of

questioning. Jessie asked Wiseman whether he wanted to discontinue the interview,

but Wiseman said he wanted to complete the interview. II R. at 21-22. 5

There was conflicting testimony about when Wiseman was read his Miranda

rights. At one point Agent Jessie said that prior to interviewing Wiseman, “[W]e read

him his Miranda rights.” II R. at 16. However, the judge noted that respecting the

interview that started at 11:30 a.m. on November 30, 1995, which Arkansas Police

Officer Dodd and Jessie took part in, Jessie’s report said, “1:54 Mirandized by Officer

5
In his reply brief, counsel for Wiseman raises the suggestion that he was
beaten during the interrogation. We are asked to draw this inference from the fact
that a photograph of defendant taken after the interrogation shows dark circles under
his eyes, while photos taken earlier do not. Defendant did not testify that he had
been beaten, and no evidence has been alluded to which would tend to show that the
dark circles were in fact from a beating (much less that the beating was at the hands
of the authorities), as opposed to from some other cause such as fatigue and the after
effects of Wiseman’s admitted use of crack cocaine.

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Dodd,” id. at 41; elsewhere Jessie said the waiver was signed “[w]ithin a few

moments” after the 11:30 commencement of the interview, id. at 28, while again the

Arkansas form said it was signed at 1:54, and Jessie said this was some hour and a

half after commencement of the interview. Id.

The judge made oral findings at the conclusion of the suppression hearing. II

R. 108 et seq. He said the motion turned on whom he believed “and I believe the

F.B.I. agents.” He found that both defendants signed waivers and there was no

coercion in their signing; they were not interrogated “all that long,” and the judge

believed the agents as to the defendants’ condition when interviewed. There was no

showing of guns or use of force. Both had been Mirandized and both freely gave

statements. The motions to suppress were denied. Id. at 109. Clearly, the issue of

voluntariness turns on the factual inquiry. The district court’s findings are supported

by the evidence presented and are based on credibility determinations. We cannot say

that these findings are clearly erroneous. See Anderson v. City of Bessemer City, 470

U.S. 564, 575-76 (1985) (great deference due to credibility determinations).

Accordingly, we see no error in the denial of the motion to suppress the defendant’s

statements.

Wiseman also argues that the district court abused its discretion in denying the

motion to re-open the suppression hearing and reconsider the ruling on that issue.

The motion was filed in the district court after substitution of counsel and, for the

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most part, was based on the contention that defendant had received ineffective

assistance of counsel at the time of the suppression hearing. This ineffectiveness of

counsel argument is also urged on appeal.

We will not consider this argument. Ineffective assistance of counsel claims

should be brought in collateral proceedings, not on direct appeal. United States v.

Galloway , 56 F.3d 1239 (10 th
Cir. 1995). Among the reasons for our holding in

Galloway , we noted that by postponing consideration of ineffective assistance claims

to collateral review, “at the very least counsel accused of deficient performance can

explain their reasoning and actions, and the district court can render its opinion on the

merits of the claim.” 56 F.3d at 1240. We also noted the importance of having the

district court, with its familiarity with counsel’s performance, consider ineffective

assistance claims in the first instance. Id. We see no reason to depart from our

general rule as laid down in Galloway and decline to consider this argument.

As for the district court’s ruling denying the motion to re-open the suppression

hearing or to reconsider the order denying the motion to suppress defendant’s post-

arrest statements, we see no abuse of discretion. The district court was under no

obligation to afford the relief requested, having already conducted an evidentiary

hearing before denying defendant’s suppression motion. Nor did the trial judge abuse

his discretion in declining to postpone the trial so that he could conduct an

evidentiary hearing on the claim that defendant’s first counsel had afforded

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ineffective representation in the suppression hearing. Without considering whether

there might be a rare case in which extraordinary circumstances would require a

district judge to adopt such a course, we certainly do not think that the ineffective

assistance claim presented to the district court in this case raised such grave doubt

about the fairness of the proceedings that an abuse of the trial judge’s discretion has

been shown.

IV

Defendant contends that the district court erred in denying his motion to

exclude evidence of identifications, both those made at trial and those made out of

court, by several witnesses who were shown a photo lineup, consisting of photos of

defendant and five other young men. Defendant contends that the photo array was

impermissibly suggestive and that the resulting identifications of him by the witnesses

were so tainted by the improperly suggestive features of the photo array that

admission of this testimony at trial violated his due process rights.

The constitutional question whether a photo array was impermissibly suggestive

invokes the inquiry we staked out in United States v. Sanchez , 24 F.3d 1259, 1261-62

(10 th Cir. 1994):

When the constitutionality of a photo array is challenged, the due
process clause requires a two-pronged inquiry: first, the court must
determine whether the photo array was impermissibly suggestive, and if
it is found to be so, then the court must decide whether the

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 identifications were nevertheless reliable in view of the totality of the
circumstances . . . . While we must review the district court’s
underlying factual findings, if any were made, under the clearly
erroneous standard, . . . the ultimate question of whether trial and
pretrial identification evidence infringed due process rights is reviewed
de novo. Grubbs v. Hannigan , 982 F.2d 1483, 1489 n. 5 (10 th
Cir.
1993).

See also Manson v. Brathwaite , 432 U.S. 98, 114 (1977).

In the first stage of our analysis, a number of factors may be relevant in

determining whether the array was improperly suggestive. These include “the size of

the array, the manner of its presentation by the officers, and the details of the

photographs themselves.” United States v. Sanchez , 24 F.3d at 1262. The district

court held an evidentiary hearing on defendant’s objections to the identifications and

his related motion in limine. Four law enforcement officers testified for the

government. The evidence was that at least three photographs were taken of

defendant shortly after his arrest in Arkansas. One of these was forwarded to Officer

Wilkinson in Carlsbad. Wilkinson put together the photo array at issue here. He

testified that he used a system in which the suspect’s photograph is classified

according to several characteristics, such as shape of the face, age, height, race and

hair color. This classification scheme is used, and was used by Wilkinson in this

case, to select photographs of other individuals who are generally similar in

appearance to the suspect. Wilkinson made copies of all of the photographs and

assembled a number of identical photo arrays, which he then gave to the F.B.I..

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Copies were then distributed to the officers in each of the other cities where the

robberies had occurred. Witnesses to the robberies in each city were shown the array

by a local officer.

The record does not reveal why the Arkansas authorities chose the particular

photo of defendant to send to the authorities in New Mexico, but the choice was

unfortunate. The photo used in the array shows defendant with very prominent dark

circles under his eyes and with an extremely unnatural, chalk-white pallor, while the

skin tones in the photos of the other five persons in the array look quite natural. The

overall effect is that the picture of the defendant stands out prominently from the

others in the array, and undoubtedly the viewer’s attention would be aroused by it.

Two witnesses stated that the defendant looked “rougher” in the photo than they

remembered him at the time of the robberies. III R. 45; V R. 103. Additionally, in

all of the photos in the array except Wiseman’s, a thin chain is visible around the

subject’s neck. Testimony at the hearing on defendant’s motion to suppress indicated

that these were “mug shots.” Presumably the chains held signs with identifying

information, but only the chains are visible in the photos as used in the array. We

think an ordinary observer in the context of a photo lineup would attach significance

to the chains.

The suggestive effect created by the sharp contrast between the appearance of

defendant’s picture and those of the others in the array is not diluted in this case by

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the use of a substantial number of photos. Instead, as we have noted previously,

using as few as six photos in an array, while not per se a due process violation, is a

factor affecting the weight we give to the irregularities in the array. Sanchez , 24 F.3d

at 1262. As we explained in Sanchez ,

when a relatively low number of photographs are used in an array, minor
differences such as background color can make a picture stand out, and
can act to repeatedly draw a witness’s eyes to that picture. Common
sense dictates that slight irregularities are more likely to “jump out” at
a witness reviewing a single sheet of paper with only six photographs on
it than at a witness reviewing a large mug book containing hundreds of
photographs. Upon continued inspection, the witness may begin to
believe that the “oddball” picture was taken under different
circumstances than the others. This fact can suggest a number of things
to the witness, the most dangerous of which is that the similar pictures
were taken together to form a pool or control group, and that the one
picture that stands out is the suspect. . . . . The lower the number of
photographs used by officers in a photo array, the closer the array must
be scrutinized for suggestive irregularities.

24 F.3d at 1262-63.

Here the low number of photos in the array cannot dilute the “suggestive

irregularities” of the array. The defendant’s picture stands out prominently from the

others. Even the relatively minor detail of the chains around the necks of the others,

which at first blush might seem favorable to the defendant, may compound the

problem because, as noted in Sanchez , the likely inference that Wiseman’s picture was

taken under different circumstances may suggest that the other photos were assembled

to provide a pool or control group, as indeed they were. Moreover, the presentation

of the photo array to the witnesses was somewhat flawed. Comments made to the

-21-
witnesses by the officers who displayed the photo array cut both ways. Some

witnesses were told that the perpetrator of the robberies might not be in the array. On

the other hand, some of the witnesses were told that a suspect had been arrested. 6

We have previously noted that imparting this information is highly suggestive.

Grubbs , 982 F.2d at 1490.

Considering all of the relevant factors – of which we believe the most

significant in this case is the way defendant’s photo stands out from the others in the

array – we conclude that the photo array itself was unduly suggestive. We must hold

that the district court’s finding of fact to the contrary, III R. at 59 (“I don’t find the

photo array to be unduly suggestive . . . .”), is clearly erroneous.

We move to the next phase of the analysis, focusing on whether the

identifications by the witnesses were reliable in spite of the “corrupting influence”

of the suggestive circumstances. To inform our determination as to the reliability of

the identifications, we examine factors identified by the Supreme Court:

[T]he factors to be considered in evaluating the likelihood of
misidentification include the opportunity of the witness to view the
criminal at the time of the crime, the witness’ degree of attention, the
accuracy of the witness’ prior description of the criminal, the level of
certainty demonstrated by the witness at the confrontation, and the

6
Several of the officers gave the witnesses a printed form to read before
presenting the array. This form contained several instructions and cautions,
including that the suspect’s photo might not be in the array. However, at least one
officer told two witnesses that the authorities believed they had the perpetrators in
custody.

-22-
 length of time between the crime and the confrontation.

Neil v. Biggers , 409 U.S. 188, 199-200 (1972).

Generally most of the witnesses, if not all, viewed the robbers, and especially

the shorter, fairer man whom they later identified as Wiseman, under favorable

conditions. The stores were well lighted, the face was not covered, and the

encounters observed by most of the witnesses lasted at least several minutes as cash

was being collected and put into bags. Although defense counsel at trial argued that

the witnesses were in such great fear that their degree of attention was greatly

reduced, the record does not support this assertion as to the witnesses who did

identify the defendant. Indeed, at three of the locations a witness had noticed

defendant before he had shown his weapon and demanded money. An employee of

the Taos store had noticed Wiseman when he first entered, before she had reason to

think anything amiss. V R. 58-60. The manager at the Alamogordo store had been

keeping an eye on Wiseman, before Wiseman approached him and began the robbery,

because he thought Wiseman might be a shoplifter. Id. at 105-08. At the Carlsbad

store, Wiseman had entered and made a small purchase, which was handled by the

manager, before returning to the store minutes later and approaching the manager for

the robbery. Id. at 75-76. In short, we believe that the record supports the

conclusions that the opportunities of the witnesses to view the perpetrator at the time

of the robberies and the witnesses’ degree of attention should weigh in favor of the

-23-
reliability of their identifications.

The third of the factors noted in Neal v. Biggers is the accuracy of the

witnesses’ prior descriptions of the perpetrator. The record indicates that the

witnesses’ descriptions were fairly accurate, if not especially detailed. Defendant

makes little argument on this facet of the analysis, and we conclude that this factor

suggests that the identifications were reliable.

The fourth of the Biggers factors is the level of certainty demonstrated by the

witness at the confrontation. At this point it is appropriate to note that we have been

considering the witnesses as a group, rather than individually, because the defendant

makes a broad brush attack on all of the identifications in general terms. We should

not be understood as suggesting that this approach is always proper in a case with

several witnesses, and it is obviously ill suited in evaluating this fourth factor in the

instant case since naturally the witnesses expressed varying degrees of certainty at the

time that they selected defendant’s photo from the array. Also, the time that a witness

took to make his or her selection varied from a few seconds to several minutes. Of

course with respect to those witnesses who indicated some uncertainty, that fact was

brought out both at the suppression hearing and at trial. 7
On balance, we must

conclude that this factor weighs in the government’s favor on some witnesses and

7
Some of the witnesses made no identification from the photo array, a factor
that the district judge relied on to support his finding that the array was not unduly
suggestive.

-24-
very slightly in the defendant’s favor as to others.

Finally, the time between the crimes and the presentation of the photo arrays

varied from about three weeks to almost three months. Three months is not an

extremely long time however, and we conclude that this factor weighs in favor of the

reliability of the identifications, but only slightly so. See Archuleta v. Kerby , 864

F.2d 709, 712 (10 th
Cir. 1989) (collecting cases, including cases where time intervals

of several months were found not to be so long as to cast doubt on the reliability of

the identifications).

On the whole, we conclude that the pretrial identifications were not so

impermissibly tainted by the suggestiveness of the photo array and the circumstances

of its presentation that use of the identification evidence infringed on due process

rights. “Even if an identification procedure is suggestive, the introduction of the

identification evidence does not necessarily violate a defendant’s due process rights.”

Archuleta v. Kerby , 864 F.2d at 711. Accordingly, we hold that defendant’s due

process rights were not infringed by the admission of testimony concerning the

pretrial identifications at trial.

As to the identifications by the witnesses at trial, defendant argues that the

suggestiveness of the pretrial identifications tainted the in-court identifications.

Because we have held that the pretrial identification procedures were not so

suggestive as to undermine the reliability of the identifications, we must reject the

-25-
attack on the trial identifications here; in view of the conclusions we have stated, the

suggestiveness in the courtroom identification procedure was a matter for the jury in

weighing the witness’s testimony. See Romero v. Tansy , 46 F.3d 1024, 1032 (10 th
Cir.

1995). 8

We hold that there was no error in the admission of the identification

testimony.

V

Wiseman contends that the district court abused its discretion in denying his

motion to sever Counts 3 and 4 from the other counts. We agree that the decision

whether to sever counts of an indictment for separate trial is a matter committed to

the sound discretion of the trial court. E.g., United States v. Cox , 934 F.2d 1114,

1119 (10 th Cir. 1991). Moreover, this is an area in which the trial judge’s discretion

is very broad. Thus, we will not reverse absent a strong showing of prejudice, which

means that “[d]efendant’s burden to show an abuse of discretion is a difficult one.”

Id. We conclude that this burden has not been met here.

As to the robbery in Clovis, the one witness, Bargman, who testified at trial
8

had not made an identification earlier from the photo array because he was not
completely sure that he could identify the suspect at that time. V R. 121-22. Thus,
we can see no prejudice from the fact that the array was presented earlier to this
witness. At trial, Bargman identified Wiseman in court and said that he was “[a]
hundred per cent” sure that he was the robber. Id. at 124.

-26-
 Wiseman argues that the government’s evidence was strongest on Counts 3 and

4 and that this created an intolerable risk that the jury would be swayed to convict

also on the “weaker” counts. Defendant specifically asserts that the evidence was

“exceptionally weak” as to counts 1, 2, 5, and 6, and refers to the section of his brief

in which he challenges the sufficiency of the evidence to support all of the counts as

support for this assertion. We address the sufficiency of the evidence arguments in

part VI, infra , in which we conclude that the evidence was sufficient as to all eight

counts. In the section of his brief addressing the sufficiency of the evidence,

defendant again singles out counts 1, 2, 5, and 6 for specific attention, asserting that

the primary shortcoming in the proof on those counts was the lack of any

identification of defendant as the perpetrator. We take it that this is the thrust of

defendant’s argument as to the alleged need for severance. To make this assertion,

defendant must be assuming, incorrectly, that we will have agreed with his contention

that his inculpatory statements should have been suppressed. Even then, the assertion

is inaccurate because as to count 2 there was evidence other than the confession to

identify defendant as one of the robbers. In any event, as we discuss in part VI-A,

infra , we believe that there was sufficient evidence to corroborate the defendant’s

confession and to support the convictions on all counts.

“[T]hat the government’s evidence was stronger on some counts than on others

does not mandate severance under Rule 14.” Cox , 934 F.2d at 1120. On our review

-27-
of the record, we do not find that the strength of the government’s evidence was so

substantially greater on Counts 3 and 4 that prejudice is shown. We find no abuse of

discretion in the denial of the motion to sever those two counts.

VI

Wiseman next argues that the evidence was insufficient to support the jury

verdict and that his trial and post-trial motions for judgment of acquittal should

therefore have been granted. His attack on the sufficiency of the evidence has several

prongs.

A

Mr. Wiseman first contends that there was insufficient evidence to corroborate

his confession. However, the confession covered only five of the six robberies; we

will separately consider the sufficiency of the evidence as to the sixth robbery and the

firearms charge based on that robbery (Counts 7 and 8 of the indictment), infra . We

review the sufficiency of the evidence de novo . United States v. McDermott , 64 F.3d

1448, 1457 (10 th
Cir. 1995). A reviewing court does not re-weigh the evidence, nor

does it

“ask itself whether it believes that the evidence at the trial established
guilt beyond a reasonable doubt.” Instead, the relevant question is
whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.

-28-
Jackson v. Virginia , 443 U.S. 307, 318-19 (1979) (quoting Woodby v. I.N.S. , 385 U.S.

276, 282 (1966)).

We note at the outset that it is not necessary for the corroborating evidence to

establish independently each element of the crime. Instead, the prosecution is

required to produce

substantial independent evidence which would tend to establish the
trustworthiness of the statement. . . . . . It is sufficient if the
corroboration supports the essential facts admitted sufficiently to justify
a jury inference of their truth. Those facts plus the other evidence
besides the admission must, of course, be sufficient to find guilt beyond
a reasonable doubt.

Opper v. United States , 348 U.S. 84, 93 (1954). See also Smith v. United States , 348

U.S. 147, 156 (1954); United States v. Chimal, 976 F.2d 608, 610-11 (10 th
Cir. 1992);

United States v. Shunk , 881 F.2d 917, 918-20 (10 th
Cir. 1989) (per curiam). Opper

rejected a view which had earlier been the rule in many jurisdictions and was deeply

rooted in the common law that independent evidence was required to corroborate the

corpus delicti . See Shunk , 881 F.2d at 918-20 (discussing concept of corpus delicti

and holdings in Opper and Smith , inter alia ). In the instant case, we think the

corroboration was sufficient that even the older corpus delicti rule, were it applicable,

would be satisfied.

With regard to the Santa Fe, Carlsbad, Alamogordo, and Silver City robberies,

witnesses who were present at the scene of each crime described the commission of

the crime and gave generally consistent, if not very detailed, descriptions of the

-29-
perpetrators. The method used in the robberies, as described by the witnesses, is

consistent with defendant’s confession. And, in the Carlsbad and Alamogordo

robberies, there was at least a tentative identification of Wiseman as one of the two

perpetrators. We certainly cannot find the evidence insufficient to corroborate

Wiseman’s confession as to those two robberies.

As to the Santa Fe robbery, the two store employees who testified were not

asked to identify Wiseman; presumably the witnesses had told the prosecuting

attorney that they could not confidently do so. The sole witness to the Silver City

robbery said that he could not make an identification. Nevertheless, we think the

corroborating evidence was sufficient as to those counts as well. When independent

evidence shows that a crime was committed, no further corroboration is necessary;

the identification of the defendant as the perpetrator may be based solely on his

confession. United States v. Treas-Wilson , 3 F.3d 1406, 1409 (10 th
Cir. 1993).

Unlike the other robberies, the government produced no witness who actually

was approached by Wiseman at the Taos grocery store and gave money over to him.

However, Katherine Duran testified that she was working one of the sales registers

at the store that day when she heard the manager yell out that he was just robbed. V

R. 54. 9
Ms. Duran said that she went out into the parking lot and saw two men

Defendant did not object to the manager’s statement, which Ms. Duran
9

related, that he had just been robbed, and an objection would have been without
(continued...)

-30-
getting into a maroon colored car. She identified defendant as one of those two men.

She had noticed Wiseman when he first came in the store; he passed very close to her,

and she was “checking him out.” V R. 58-60. This evidence is certainly adequate

corroboration of defendant’s confession to that crime.

Mr. Martinez was the only witness called to testify to the commission of the

robbery at Silver City. He described a robbery which generally fit the pattern of the

other robberies. A man with light brown hair approached him when he was in the

store office, brandished what appeared to be a firearm (which Martinez identified at

trial as one of the air pistols recovered from the vehicle Martin and Wiseman

abandoned at the time of Wiseman’s arrest), and demanded that Martinez open the

safe. VI R. at 215-17. During the encounter, Martinez looked around the store and

spotted a second man, larger and darker than the first, who opened his coat to reveal

a gun that he was carrying. Id. at 217-18. The description of the second man, while

not very specific, generally matches the descriptions of Martin given by other

witnesses. Id. (“dark and heavyset”). Martinez identified the Tec-9 which was

recovered after the car chase in Arkansas as the weapon the second man had displayed

during the robbery. We conclude that this evidence was sufficient to corroborate

defendant’s confession to this crime.

9
(...continued)
merit. The statement would have been admissible as an excited utterance. Fed. R.
Evid. 803(2).

-31-
 The defendant’s confession did not include any information about the Clovis

robbery. Although defendant does not specifically attack the sufficiency of the

evidence that he participated in a robbery there, we have examined the record and

found the evidence sufficient to support his conviction on that robbery charge. Mr.

William Bargman was the store manager who was approached by Wiseman, and at

trial he positively identified Wiseman. V R. 112-15. Other details that he gave of the

robbery showed that the robbers followed the same general method they had used in

the previous five robberies.

In sum, we find that sufficient evidence corroborated the defendant’s

confession as to his participation in five robberies 10
and that his commission of the

sixth robbery was also established by sufficient evidence. Defendant raises two other

arguments attacking the sufficiency of the evidence. We must determine whether the

requisite connection to interstate commerce was proven to support the robbery

convictions under the Hobbs Act, and we must examine the evidence regarding the

use of a firearm in the Silver City and Clovis robberies.

Defendant also attempts to cast doubt on the “trustworthiness” of his
10

confession, suggesting the fact that the Arkansas authorities had been informed of
the New Mexico robberies as a basis, it seems, for the inference that the interrogators
supplied all of the content of the confession. This is nothing but an attack on the
credibility of the government’s witnesses. We defer to the district judge’s resolution
of credibility issues and his specific findings thereon, made at the hearing on the
defendant’s motion to suppress his confession. Seeing nothing else to this facet of
defendant’s argument, we reject it.

-32-
 B

In reviewing the evidence on the six robbery counts thus far, we have omitted

the element which distinguishes violations of the Hobbs Act from common law

robbery and provides the basis for federal jurisdiction in this case – the requirement

that the robberies have some nexus with interstate commerce. The Hobbs Act

provides for the punishment of anyone who “ 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 so to do . . . .” 18 U.S.C. § 1951(a)

(emphasis added). This language shows the intent to “use all the constitutional

power Congress has” to protect interstate commerce. Stirone v. United States , 361

U.S. 212, 215 (1960). Consistent with that legislative intent, we have held that only

a de minimis effect on commerce must be shown. E.g., United States v. Bolton , 68

F.3d 396, 398-99 (10 th
Cir. 1995).

Defendant’s argument that the evidence was insufficient to establish the

interstate commerce element necessary for the Hobbs Act convictions is a narrow one.

He concedes that only a de minimis effect need be proven and acknowledges our

holding that this minimal effect can be established by evidence that the stolen money

would have been used to purchase items in interstate commerce, a concept known as

the “depletion of assets theory.” Bolton , 68 F.3d at 398. His contention is that the

evidence as to all but the first robbery count (the Santa Fe robbery) was insufficient

-33-
to meet even this low standard because the witnesses were not asked specifically

whether the stolen money would in fact have been used to purchase goods from

interstate sources, as the witnesses in Bolton apparently were.

As to each of the other five robberies, a manager or other knowledgeable store

employee testified that: the store carried tens of thousands of items; the wholesalers

from whom the store purchased its goods provided goods originating in several other

states; and generally that sales revenues were used to pay employees, to pay for utility

services and other items of overhead, and to purchase more goods to replenish stocks.

Defendant contends that this evidence was insufficient because the witnesses were

never asked if the stolen revenues would have been used to purchase more goods in

interstate commerce. This contention thus raises a legal question, which we review

de novo , regarding the evidence necessary to satisfy the interstate commerce element

of the Hobbs Act.

We hold that the evidence was sufficient. In the instant case, as to each

robbery count, the government introduced evidence that the store in question

purchased substantial amounts of goods in interstate commerce for resale, and that

sales revenues were used in part to replenish those supplies. We note that the

amounts taken in these robberies, ranging from $2,500 to $20,000, were significant.

See United States v. Zeigler , 19 F.3d 486, 491 (10 th
Cir. 1994) (amounts ranging from

$160 to $1500 not “so trivial as to automatically place these robberies beyond the

-34-
reach of the [Hobbs] Act”). On this evidence, a properly instructed jury could have

inferred that the stolen money could have been used to purchase additional goods in

commerce. Zeigler , 19 F.3d at 493 (“A jury may infer that interstate commerce was

affected to some minimal degree from a showing that the business assets were

depleted.”).

Wiseman contends, however, that this jury was not properly instructed. His

argument on this point, which is closely related to his argument on the sufficiency of

the evidence, is that the jury should have been instructed that the government had to

prove that the stolen money would have been used to purchase more goods in

interstate commerce. Instead of that, the jury here was told that the government could

meet its burden of proof by showing that the stolen money could have been used to

purchase additional goods in interstate commerce.

The instructions informed the jury that the Hobbs Act counts required proof of

three elements: first, the taking of property from another against that person’s will;

second, the use of actual or threatened force, violence, or fear of injury; and third,

that the conduct “obstructed, delayed, interfered [with] or affected interstate

commerce.” The problem, defendant contends, is in the following instruction, which

explained for the jurors the meaning of the interstate commerce element. Instruction

8E included the following:

If the government proves beyond a reasonable doubt that these
businesses purchased goods or services that come from outside the State

-35-
 of New Mexico and that, therefore, all or part of the money allegedly
stolen from these businesses because of the alleged robbery could have
been used to obtain such foods or services from outside the State of New
Mexico, then you are instructed that you may find that the defendant
“obstructed, delayed or affected commerce” as that term is used in these
instructions.
It is not necessary for the government to prove that the defendant
actually intended to obstruct, delay, or affect commerce. The
government must prove beyond a reasonable doubt, however, that the
defendant deliberately performed an act, the ordinary and natural
consequences of which would be to obstruct, delay, or affect commerce,
and that commerce was, in fact, obstructed, delayed or affected.

I R. at Tab 145 (Instruction 8E) (emphasis added).

Because only a de minimis effect on commerce is required and the final words

of the instruction require the jury to find that commerce was affected, it could be

argued that the instruction is perfectly sound. We cannot overlook, however, the fact

that the jurors were specifically told that they could find that commerce had been

affected if they found that the stolen money could have been used to purchase

additional goods in commerce. And, if this standard is legally incorrect, we do not

think that other language elsewhere in the instructions could cure this defect. “Where

two instructions are given which are in direct conflict with each other, one of which

is error and might have been followed by the jury, the giving of such instructions is

generally said to be prejudicial.” Gonzales v. United States , 286 F.2d 118, 122 (10 th

Cir. 1960); accord, United States v. DeMasi , 40 F.3d 1306, 1319 (1 st
Cir. 1994). Thus,

the fact that one part of the instruction required the jury to find that commerce “was

in fact” affected will not remove the prejudice if the previous language – telling the

-36-
jury that it could find that commerce had been affected if the stolen money could have

been used to purchase additional goods in commerce – was legally flawed.

This issue thus turns on the highly specific question whether the jury should

have been told that the evidence had to demonstrate that the stolen money would have

been used to purchase more goods and services in interstate commerce, or whether it

was correct to instruct the jury that it would be sufficient if the stolen money could

have been used to purchase additional goods and services in commerce. 11
The simple

answer to the dispositive question is that the instruction was not prejudicial because

only a potential effect on commerce is required to satisfy the interstate commerce

element. United States v. Nguyen , 155 F.3d 1219, 1228 (10 th
Cir. 1998), cert. denied,

119 S.Ct. 1086 (1999). Therefore, the instruction challenged by Wiseman was not

prejudicial, and the evidence was sufficient to support the jury’s verdict on each

count. 12

11
To a layperson, this acute focus might appear to be trivial, but it most
certainly is not. “The interstate commerce element of a Hobbs Act violation is not
superfluous – it is the hook by which the Federal Government gains jurisdiction.”
Zeigler , 19 F.3d at 495 (Ebel, J., dissenting).

Arguably, this question was resolved in this circuit several years ago in
12

United States v. Whitt , 718 F.2d 1494, 1500 (10 th Cir. 1983). The defendant in Whitt
was a county official in Oklahoma who was charged with violating the Hobbs Act
in an extortion scheme. We held that evidence that the county was engaged in
commerce, paid a kickback to a supplier, and thereby experienced a depletion of its
assets was sufficient. The jury there was instructed that the government was required
to prove that “the natural consequences of the acts alleged would be to delay,
(continued...)

-37-
 In Nguyen , we considered whether the trial court had erred in instructing the

jury that the government’s burden was to show that as a consequence of the robbery

charged there, “interstate commerce, or an item moving in interstate commerce, was

actually or potentially delayed, obstructed, or affected in any way or degree.” 155

F.3d at 1228 (emphasis added). In another instruction, the jury in Nguyen was told

that the interstate commerce element could be established if the jury found that the

defendant’s actions “either caused, or would probably cause , an effect on interstate

commerce . . . .” Id. (emphasis added). Although these instructions in Nguyen were

worded differently than the instructions given to the jurors in the instant case, we

think it quite clear that the legal effect was the same. The instructions that we

approved in Nguyen said that a potential effect on commerce would be sufficient, and

the instruction here stated that it would be sufficient if the stolen funds could have

been used to purchase additional goods in commerce. These differently worded

instructions state the same legal standard. As we explained in Nguyen :

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

12
(...continued)
interrupt or adversely affect” commerce. Id. On the same day that Whitt was
decided, we upheld convictions in a similar case, in which we approved an
instruction which stated that the government’s burden was to show that the defendant
“actually or potentially obstructed, delayed or affected interstate commerce or
attempted to do so.” United States v. Boston , 718 F.2d 1511, 1516 (10 th Cir. 1983)
(emphasis added). In neither of these cases was the jury instructed, as Wiseman
asserts is required, that it was necessary to find that the extorted funds would have
been used to buy more goods and supplies in commerce.

-38-
 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 [v.
Filburn] , 317 U.S. [111,] 127-28 [(1942)]. 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 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.

155 F.3d at 1228 (emphasis added).

Because we believe that the instructions given in this case required a finding

of a potential effect on commerce, and because in Nguyen we specifically held that

there was no error in instructing the jury that a potential effect on commerce would

satisfy the interstate commerce element under the Hobbs Act, we must reject

defendant’s argument and hold that there was no error in the instructions here as to

this point.

C

In the last attack on the sufficiency of the evidence, Wiseman contends that he

was wrongly convicted on the two counts brought under 18 U.S.C. § 924(c)(1)

because there was no evidence to show that he aided and abetted a violation of this

-39-
statute by his accomplice, Martin. Section 924(c)(1) makes it a crime for anyone to

use or carry a firearm during and in relation to a crime of violence or a drug

trafficking crime. 13
In counts 6 and 8, the indictment charged that Martin and

Wiseman violated section 924(c)(1) by using or carrying the Tec-9 firearm while

committing the robberies in Silver City and Clovis, respectively. The indictment

charged aider and abettor liability under 18 U.S.C. § 2 as well, and the government’s

theory at Wiseman’s trial, as the prosecuting attorney explained in his closing

argument, was that although Martin actually held the Tec-9 during the Silver City and

Clovis robberies, Wiseman was responsible for aiding and abetting Martin’s section

924 crime. VI R. at 302-304.

Thus, to find Wiseman guilty of these counts, the jury must have found that

Martin used or carried a firearm during the last two robberies. On appeal, defendant

argues that the government failed to show, with respect to the Clovis robbery, that

Martin actually “used” the weapon in connection with the crime as the Supreme Court

defined the term in Bailey v. United States , 516 U.S. 137 (1995). Defendant asserts

that the witness to the Clovis robbery did not testify that Martin did anything with the

gun. This argument is without merit. It is sufficient that Martin displayed the

13
To establish federal jurisdiction, the underlying crime of violence or drug
trafficking must be one for which the accused could be prosecuted in federal court.
It is undisputed that robbery is a crime of violence within the meaning of this statute.
We have already discussed the basis for federal jurisdiction of these robberies.

-40-
weapon, which he did with the obvious intent of intimidating the store employees and

facilitating the robbery. V R. at 113. Displaying a firearm during the commission of

a crime was recognized by the Court in Bailey as sufficient to constitute use. 516

U.S. at 148 (“The active-employment understanding of ‘use’ certainly includes

brandishing, displaying, bartering, striking with, and, most obviously, firing or

attempting to fire a firearm.”).

As to the Silver City robbery, defendant’s argument is so conclusory as to be

without content. In a single sentence, he says that the supposed lack of identification

evidence “must be combined with the lack of evidence as to aiding and abetting on

the gun charge.” Although this is merely conclusory, we will assume that defendant

intended to adopt the same argument as to the Silver City robbery that he made as to

the Clovis robbery, i.e. that there was insufficient evidence that Martin “used” the

weapon. The record shows otherwise; Martin also displayed the Tec-9 weapon during

the Silver City robbery. VI R. at 217-19. To the extent that defendant argues that the

evidence did not show that he aided and abetted Martin’s conduct, he is wrong. To

the contrary, the evidence was easily sufficient to show that Wiseman knowingly and

actively participated in the robberies and that he knew that Martin was carrying the

firearm. See United States v. Jones , 44 F.3d 860, 869 (10 th
Cir. 1995) (“To be guilty

of aiding and abetting, a defendant must willfully associate with the criminal venture

and aid such venture through affirmative action.”).

-41-
 We find no error in overruling defendant’s motion for judgment of acquittal on

counts six and eight.

VII

Defendant raises three issues with respect to the sentence imposed by the

district court. We review questions of law regarding application of the Sentencing

Guidelines de novo . United States v. Farnsworth , 92 F.3d 1001, 1007 (10 th
Cir.

1996). We review findings of fact under the clearly erroneous standard, mindful of

our obligation to give “due regard” to the district judge’s determinations of the

credibility of witnesses. Id. at 1009 (quoting 18 U.S.C. § 3742(e)).

A

First, defendant contends that the district court erred in calculating his offense

level on count one, the Santa Fe robbery. The district judge found in accordance with

the recommendation of the Presentence Report (PSR) that Wiseman had used a

firearm in connection with that robbery, which led to a five level increase in the

offense level under U.S.S.G. § 2B3.1(b)(2)(C). Wiseman contends that this was error

because only air pistols were used in the Santa Fe robbery. The Guidelines

specifically define air guns as “dangerous weapons” rather than as “firearms,”

U.S.S.G. § 1B1.1 Application Note (e), and only a three level increase would have

been applied had the sentencing court found that only air pistols had been used in the

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robbery, instead of the five level increase the court actually applied. U.S.S.G. §

2B3.1(b)(2).

Defendant relies on his post-arrest statement, admitted at trial through the

testimony of one of the interrogators, Agent Jessie. Defendant had told the

authorities that he and Martin had used only air pistols in the first several robberies.

The district court specifically found that a firearm had been used. Although the judge

did not specify the basis for his ruling, the government had argued, as it does on

appeal, that both of the witnesses to the Santa Fe robbery had described the gun

carried by the shorter defendant (whom we know from the confession was Wiseman)

as having a black barrel. V R. at 31, 40. In contrast, the air pistols recovered at the

time of Wiseman’s arrest and admitted as exhibits at trial had silver barrels. Thus,

the district judge had conflicting evidence before him, and from the testimony of the

witnesses could have found that an actual firearm was used in the Santa Fe robbery.

We cannot conclude that the district court’s resolution of this conflicting evidence

was clearly erroneous.

B

The district court applied a two level increase for obstruction of justice, based

on defendant’s attempt to escape from the Torrance County Detention Center after his

trial and before the sentencing hearing. Defendant contends that the evidence that he

participated in the attempted escape was unreliable. Defendant refers to a report

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concerning the alleged escape attempt which had been submitted to the court by the

government and notes that he objected to this report, asking the district judge to

require testimony at the sentencing hearing to establish the factual underpinning of

this increase. The report is not in the record.

At the sentencing hearing, defendant merely made the bald assertion that the

report did not have sufficient indicia of reliability to be considered by the court; 14
he

gave no indication of the reasons for this position. On appeal, defendant merely

recites the fact that he made the bald assertion in the district court. No specific

assertion is made which would cast doubt on the reliability of the report. This gives

us no basis for reversing the district court’s ruling that the report had sufficient

indicia of reliability, and accordingly we must affirm the district court on this point.

C

At sentencing, the district court added three points to defendant’s criminal

history score for his conviction in state court for the commission of an armed robbery

in Fayetteville, Arkansas. That robbery was committed a short time after the six New

Mexico robberies and just prior to defendant’s arrest. The judge also added two

points for Wiseman’s conviction in the District of Idaho for the offense of aiding and

14
Thus, defendant implicitly acknowledged the well established principle that
the sentencing court may consider relevant information without adherence to the
formal rules of evidence, so long as the information has sufficient indicia of
reliability. United States v. Browning , 61 F.3d 752, 755 (10 th Cir. 1995); U.S.S.G.
§ 6A1.3(a).

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abetting a federal prisoner to escape. That charge was based on the escape by Martin

and Wiseman from custody in Idaho just prior to their beginning the string of

robberies in New Mexico (see note 2, supra ). Defendant’s final criminal history score

was thirteen, resulting in a criminal history category of VI.

While he does not contest any of the other prior convictions included in the

calculation of his criminal history score, defendant contends that these two

convictions just described should have been treated as related convictions under the

Guidelines, with the result that only one point would have been added to his criminal

history score under U.S.S.G. § 4A1.1(f), he says, instead of five. Defendant relies

primarily on Application Note 3 to U.S.S.G. § 4A1.2, which provides in pertinent

part:

Prior sentences are not considered related if they were for offenses
that were separated by an intervening arrest ( i.e. , the defendant is
arrested for the first offense prior to committing the second offense).
Otherwise, prior sentences are considered related if they resulted from
offenses that (1) occurred on the same occasion, (2) were part of a single
common scheme or plan, or (3) were consolidated for trial or sentencing.

It is clear that there was no intervening arrest here, defendant urges, and he then

contends that the offenses were part of a single scheme or plan and so were to be

treated as related under the above quoted language.

The district court’s determination of whether offenses were related is a factual

determination which we review only for clear error, but we review the application of

the sentencing guidelines, including the meaning of the term “related,” de novo .

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United States v. Alberty , 40 F.3d 1132, 1133 (10 th
Cir. 1994). Defendant argues that

the entire crime spree, from the escape from custody in Idaho to the eventual arrest

in Arkansas, should have been treated as a single scheme or plan under this provision.

This argument is legally flawed because it is based on a misunderstanding of the

purview of Application Note 3. The section to which this note is applicable, §

4A1.2(a)(2), refers to “prior sentences” and is not concerned with the counts of

conviction. As we have previously pointed out, “[t]he question of ‘related cases,’

referred to in § 4A1.2(a)(2), applies to the relationship between prior sentences, not

to the relationship between prior sentences and the present offense[s].” United

States v. Walling , 936 F.2d 469, 471 (10 th
Cir. 1991) (emphasis added) (citing United

States v. Banashefski , 928 F.2d 349, 353 (10 th
Cir. 1991)). To the extent that §

4A1.2(a)(2) and Note 3 are applicable at all to defendant’s position, we will consider

whether the two previous sentences should have been treated as related to each other.

We have said that in considering whether prior convictions arose from a

common scheme or plan, the focus should be on “factual commonality,” as reflected

in criteria such as “temporal and geographical proximity,” and common victims.

United States v. Shewmaker , 936 F.2d 1124, 1129 (10 th
Cir. 1991). The two crimes

at issue here, the escape in Idaho and the robbery in Arkansas, were separated by

several months in time and over a thousand miles in distance. There were no common

victims. And defendant has not even alleged that when he fled the prison in Idaho he

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was already planning a series of grocery store robberies in several states. To the

contrary, in his confession defendant related forming the idea with Martin some time

after the escape. We agree with the district judge that the Idaho escape and the

Arkansas robbery were not related.

While we have noted that defendant’s argument misapprehends the application

of § 4A1.2(a)(2), we will consider what we perceive to be the gist of his argument –

whether these two other convictions were so closely related to the counts of

conviction that they should not have been included in his criminal history calculation.

See Walling , 936 F.2d 469, 471. Under § 4A1.2(a), the “term ‘prior sentence’” for

which points are to be added to the criminal history score includes “any sentence

previously imposed . . . for conduct not part of the instant offense.” In this case the

PSR indicates clearly that the two convictions under consideration were not treated

as part of the instant offenses, either as “relevant conduct” or in any other way. Nor

do we see any reason why they should be. The differences in time, place, and victims

made each of these robberies clearly discrete events, so we could not find that the

Arkansas robbery was part of the conduct involved in the New Mexico robberies, and

likewise the escape clearly was a separate act by the defendant.

In short, we see no basis for disagreement with the district court’s resolution

of defendant’s objections to the PSR, and find no error in the sentence imposed.

AFFIRMED .

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