United States v. Toles

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 25 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 01-5009
v.

ELLIOT C. TOLES,

Defendant - Appellant.

Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 99-CR-97-C)

Thomas Scott Woodward, First Assistant United States Attorney, (David E.
O’Meilia, United States Attorney, with him on the briefs), Tulsa, Oklahoma, for
Plaintiff-Appellee.

William D. Lunn, Tulsa, Oklahoma, for Defendant-Appellant.

Before BRISCOE and MURPHY, Circuit Judges, and VAN BEBBER, Senior
District Judge *.

MURPHY, Circuit Judge.

*
The Honorable G. Thomas Van Bebber, Senior District Judge, United
States District Court for the District of Kansas, sitting by designation.
I. INTRODUCTION

Defendant-Appellant Elliot C. Toles was charged with various offenses in

Tulsa, Oklahoma in a superceding indictment. At the conclusion of a jury trial,

Toles was found guilty of multiple counts each of interference with interstate

commerce, using or brandishing a firearm during a crime of violence, and bank

robbery. In addition, he was convicted of aiding and abetting in connection with

each of the above offenses. On appeal, Toles argues that (1) police investigators

obtained incriminating statements from him in violation of the Fifth and Sixth

Amendments; (2) the district court’s restriction on the cross-examination of a

witness violated his Confrontation Clause rights; (3) there was insufficient

evidence to sustain his convictions under the Hobbs Act and 18 U.S.C. § 924(c);

(4) the prosecutor’s improper remarks during closing statements constituted

reversible error; and (5) there was cumulative error. We exercise jurisdiction

under 28 U.S.C. § 1291 and affirm.

II. BACKGROUND

During the evening hours of June 30, 1999, Toles was arrested with

DeMarques Morris and Sh-Pone Harris in connection with an armed robbery of a

Burger King restaurant in Wichita, Kansas. Toles was taken to the FBI building

-2-
in Wichita. FBI Special Agent Randy Ewy and Sergeant Michael Hennessy of the

Wichita Police Department interviewed Toles for several hours into the early

hours of July 1. After signing a waiver of rights, Toles mentioned other

robberies in Kansas and Oklahoma. After this first interview, Toles was taken to

the Sedgwick County Adult Detention Facility (“SCADF”) to spend the night.

Sometime prior to July 2, 1999, Toles was formally charged for his

participation in the Kansas robberies. 1 He was represented by counsel in that

matter. On July 2, Wichita Police Department Detective Steven Nevil, on

assignment with the FBI Violent Crime Task Force, and FBI Special Agent

Pritchett accompanied Toles to a scheduled court appearance on the Kansas

charges. At the Wichita federal courthouse, Pritchett told Nevil that Toles wanted

to speak with Nevil. Nevil and Pritchett escorted Toles to a restroom. After

signing a waiver of rights form, Toles indicated that he was responsible for the

robberies of a tag agency 2 and a bank in Tulsa. The interview in the bathroom

was cut short by Toles’ scheduled court appearance, but Nevil had at some point

1
Toles was eventually tried and convicted of the Kansas crimes in federal
court. In a prior appeal from the Kansas convictions, this court denied Toles’
constitutional challenge to the Hobbs Act as exceeding Congress’ power to
regulate under the Commerce Clause. See United States v. Toles, No. 00-3012,
2001 WL 314523, at **1 (10th Cir. Apr. 2, 2001).
2
A tag agency produces driver’s licenses and state identification cards. It
also sells vehicle tags, which function as a license tax, and pike passes, which
permit Oklahoma and out-of-state residents to drive on Oklahoma toll roads.

-3-
given Toles a business card and stated that he could call Nevil collect at the FBI

if he had anything further to discuss.

A few hours after the arraignment, Toles placed a collect call from the

SCADF to Detective Nevil. After Nevil arranged a meeting with Toles at the

SCADF and advised him of his rights, Toles made statements implicating himself

in four robberies in Tulsa, the indicted charges in this case. Toles further stated

that a fake beard and mustache and a note were used during one of the robberies.

Toles was indicted and tried with co-defendant Morris for the robberies of

the Northside Tag Agency, a Homeland grocery store, and branches of the Bank

of Oklahoma and the American State Bank. At trial, Harris testified as a

government witness pursuant to a grant of use immunity. The district court did

not permit Toles to cross-examine Harris about the details of a plea agreement

Harris had entered into in the Kansas prosecution. Toles was found guilty of two

counts of violating the Hobbs Act, 18 U.S.C. § 1951, two counts of 18 U.S.C. §

924(c), and two counts of bank robbery, 18 U.S.C. § 2113(a). 3

3
Morris was also found guilty of multiple offenses and brought a separate
appeal of those convictions. See United States v. Morris, No. 99-CR-97-C (D.
Kan. Dec. 11, 2000), appeal docketed, No. 00-5255 (10th Cir. Jan. 19, 2001).

-4-
III. DISCUSSION

A. Motion to Suppress Incriminating Statements

Toles argues that the district court’s refusal to suppress his post-arrest

statements, in which he incriminated himself in the Oklahoma robberies, violated

his Fifth and Sixth Amendment rights. Specifically, Toles alleges that two

separate discussions with FBI agents on July 2 violated his Sixth Amendment

right to counsel because Toles had already been formally charged and was

represented by counsel. He further alleges that the statements were not

voluntarily given, in violation of the Fifth Amendment. After conducting an

evidentiary hearing, the district court denied Toles’ motions to suppress.

1. Sixth Amendment Right to Counsel

In reviewing the district court’s order granting or denying a motion to

suppress, this court accepts the district court’s factual findings unless clearly

erroneous and considers the evidence in the light most favorable to the district

court’s determination. United States v. Caro, 248 F.3d 1240, 1243 (10th Cir.

2001). “We are mindful that at a hearing on a motion to suppress, the credibility

of the witnesses and the weight given to the evidence, as well as the inferences

and conclusions drawn therefrom, are matters for the trial judge.” Id. (quotation

omitted).

-5-
 A defendant’s Sixth Amendment right to counsel attaches when formal

judicial proceedings, such as a formal charge, preliminary hearing, indictment,

information, or arraignment, have been initiated against him. See United States v.

Gouveia, 467 U.S. 180, 187-88 (1984). The Sixth Amendment right to counsel,

however, is offense-specific and does not prevent law enforcement from

questioning a defendant about unrelated or uncharged criminal activity. See

McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). 4

In this case, Toles had been charged for the Kansas crimes at the time he

gave both July 2 statements, but formal criminal proceedings had not been

brought against him for the Oklahoma crimes. Thus, Toles’ Sixth Amendment

right to counsel had not attached with respect to the unindicted Oklahoma crimes.

2. Voluntariness of Incriminating Statements

Toles also alleges that the two statements he gave to Detective Nevil on

July 2, 1999 were involuntary, in violation of his Fifth Amendment due process

rights. He argues that the incriminating statement he gave to law enforcement in

a courthouse restroom before his arraignment on the Kansas crimes was the result

4
The Supreme Court has recently created a narrow exception to McNeil by
holding that the Sixth Amendment right to counsel also attaches to uncharged
offenses that would be considered the “same offense” under Blockburger v.
United States, 284 U.S. 299 (1932). See Texas v. Cobb, 532 U.S. 162, 173
(2001). The parties do not cite Texas v. Cobb, or otherwise argue that the
exception it created applies in the instant case.

-6-
of law enforcement’s high-pressure tactics, Toles’ lack of sleep in the preceding

forty-eight hours, and his youth and limited intelligence. 5

This court reviews de novo the voluntariness of a statement, although

specific underlying findings of fact are reviewed for clear error. See United

States v. Gonzales, 164 F.3d 1285, 1289 (10th Cir. 1999). When the government

obtains incriminating statements through acts, threats, or promises which cause

the defendant’s will to be overborne, it violates the defendant’s Fifth Amendment

rights and the statements are inadmissible at trial as evidence of guilt. See United

States v. Glover, 104 F.3d 1570, 1579 (10th Cir. 1997) (citing Malloy v. Hogan,

378 U.S. 1, 7 (1964)). The determination of voluntariness is based on the totality

of circumstances. Gonzales, 164 F.3d at 1289. Relevant circumstances embrace

both the characteristics of the accused and the details of the interrogation. Id.

(quotation omitted). Such factors include (1) the age, intelligence, and education

of the defendant; (2) the length of detention; (3) the length and nature of the

questioning; (4) whether the defendant was advised of his constitutional rights;

and (5) whether the defendant was subjected to physical punishment. Glover, 104

F.3d at 1579 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)).

5
Toles also claims that his subsequent incriminating statement to Detective
Nevil at the SCADF was nothing more than a continuation of the earlier interview
at the courthouse. By the time Nevil spoke to Toles at the SCADF, however,
several hours had elapsed since the interview in the courthouse bathroom. The
passage of time alone undercuts his argument and we review them as separate
incidents.

-7-
 After reviewing the entire record, this court concludes that Toles’

statements on July 2 were freely and voluntarily given. At both the bathroom and

SCADF interviews, Toles was advised of his constitutional rights and in each

instance he signed a written waiver of rights. Although Toles alleges that the

agents did not inform him about the nature of the charges against him and their

consequences, a defendant’s confession is not coerced merely because law

enforcement did not inform the defendant of all the potential charges that could

be brought. See United States v. Nguyen, 155 F.3d 1219, 1222 (10th Cir. 1998).

In both instances, Toles was lucid and responsive to questioning. Toles

concedes that there was no evidence of the use or threat of physical punishment.

At the time of the interviews, Toles was twenty-one and had completed the ninth

grade prior to receiving his Graduate Equivalency Diploma while incarcerated for

other crimes. Detective Nevil testified at trial that, based on his interactions with

Toles, nothing suggested that he had a limited intelligence. Moreover, Toles had

previously been convicted of a felony, indicating that he had previous experience

with the criminal justice system. Thus, there is no evidence indicating that Toles

was “unusually susceptible to coercion because of age, lack of education, or

intelligence.” Id. at 1222 (quotation omitted).

Furthermore, the district court’s finding that there was no evidence of any

threat, coercion, undue influence, or promise made in exchange for Toles’

-8-
statements is not clearly erroneous. Detective Nevil testified that he did not make

any promises to Toles in the courthouse restroom. Indeed, Nevil testified at trial

that it was Toles who broached the subject of the Oklahoma crimes. Although

Toles testified that he made the bathroom statement after discussing the benefits

of cooperation and the possibility of having all the charges run concurrently, the

district court’s determination necessarily meant that it credited Nevil’s testimony

and discounted Toles’. Detective Nevil also testified it was possible that Agent

Pritchett, who was present at the bathroom interview, discussed with Toles the

consequences of cooperation. Pritchett did not testify at the suppression hearing

or at trial. The possibility that Pritchett may have discussed the benefits of

cooperation with Toles does not render his statements involuntary. Cf. Nguyen,

155 F.3d at 1222 (explaining that agent’s testimony that another agent may have

agreed to inform the prosecutor of the defendant’s cooperation did not coerce the

defendant’s statement).

Toles’ SCADF statement was also given voluntarily. Toles initiated

contact with Nevil to discuss the Oklahoma robberies. Cf. United States v.

Fountain, 776 F.2d 878, 885 (10th Cir. 1985) (noting that defendant’s initiation

of contact with law enforcement is a factor in the voluntariness of statement). At

the SCADF, Nevil reminded Toles that he had counsel and could have counsel

available if he so wanted, but Toles did not request counsel’s presence. Although

-9-
Nevil acknowledged that he discussed the possibility of consolidation with Toles,

it was Toles who raised the topic. Moreover, Nevil explained to Toles that any

transfer of charges pursuant to Rule 20 of the Federal Rules of Criminal

Procedure must be initiated by defense counsel and “wasn’t something that the

government is responsible for setting in motion.” Nevil specifically suggested

that Toles speak to his attorney if he wanted a more detailed explanation of the

procedure or wished to pursue consolidation, but Toles did not seek the advice of

counsel before giving an incriminating statement. Viewing the evidence in the

light most favorable to the government, we agree with the district court that

Toles’ incriminating statements were voluntary.

B. Limitation on Cross-Examination of Sh-Pone Harris

Toles next contends that limitations on his cross-examination of Harris

violated his Confrontation Clause rights under the Sixth Amendment. Harris

testified at trial after the government granted him use immunity. During the trial,

Toles attempted to cross-examine Harris about the details of a plea agreement

Harris had entered into in the Kansas criminal case. The government, however,

argued that the plea agreement was made in another jurisdiction, was not binding

on Harris in this case, and was therefore irrelevant. Under cross-examination by

co-defendant Morris, Harris stated that he was not testifying because of the plea

agreement in Kansas. Based on that testimony, the district court did not allow

-10-
Toles to cross-examine Harris about the contents of the plea agreement. The

district court stated that the contents of the plea agreement were irrelevant

because Harris had already stated that his testimony was not pursuant to the plea

agreement and because the Kansas plea agreement “has no relationship to this

case.”

This court reviews de novo whether cross-examination restrictions violate a

defendant’s Sixth Amendment right to confrontation. United States v. McGuire,

200 F.3d 668, 677 (10th Cir. 1999). “[T]he Confrontation Clause guarantees an

opportunity for effective cross-examination, not cross-examination that is

effective in whatever way, and to whatever extent, the defense might wish.”

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (quotation omitted).

Although the trial court has wide discretion to impose reasonable limits on the

scope of cross-examination, “the exposure of a witness’ motivation in testifying is

a proper and important function of the constitutionally protected right of cross-

examination.” Id. at 678-79 (quotation omitted). A defendant’s Confrontation

Clause rights are violated when he is prohibited from engaging in otherwise

appropriate cross-examination designed to elicit the witness’ bias and a

reasonable jury might have received a significantly different impression of the

witness’ credibility. See id. at 680.

-11-
 The parties dispute whether Harris’ plea agreement in a federal Kansas

court is binding on him in a federal court in Oklahoma. This court has not

previously addressed the issue of whether a plea agreement made in one

jurisdiction is binding on a defendant in another jurisdiction, and need not resolve

it in this case.

Even if the Kansas plea agreement were binding on Harris in Oklahoma and

the limitation on the cross-examination of Harris violated Toles’ Confrontation

Clause rights, the limitation is subject to harmless error review. See United States

v. DeSoto, 950 F.2d 626, 630 (10th Cir. 1991) (citing Chapman v. California, 386

U.S. 18, 22 (1967)); see also Van Arsdall, 475 U.S. at 684. In conducting a

harmless error review, this court determines whether the error was harmless

beyond a reasonable doubt. See Van Arsdall, 475 U.S. at 684. Among the factors

to consider are the importance of the witness’ testimony in the prosecution’s case,

the cumulative nature of the testimony, the presence or absence of corroborating

or contradictory testimony, the extent of cross-examination otherwise permitted,

and the overall strength of the prosecution’s case. Id.

In this case, the record contains ample evidence of Toles’ guilt. Detective

Nevil testified that Toles confessed to each of the four robberies charged in this

case and provided details about the location of certain robberies, the amounts

taken, and his role as a getaway driver. These details were consistent with the

-12-
details provided in DeMarques Morris’ confession to Detective Nevil on July 2 at

the SCADF. Toles also indicated that a note and a fake beard and mustache were

used in one of the bank robberies, which is corroborated by Morris’ confession

and the testimony of Dekisha Verner, a bank teller at the American State Bank

robbery.

Furthermore, Toles’ cross-examination of Harris was circumscribed only as

to the Kansas plea agreement. Although the jury did not hear testimony about the

contents of the agreement, it heard Toles elicit testimony from Harris about its

existence. Toles conducted extensive cross-examination of Harris about the

statements Harris gave to law enforcement and the conversations he had with

Toles and Morris about the robberies. The jury was able to witness Harris’

demeanor and assess his credibility.

In addition, the possibility that Harris was biased in favor of the

government is mitigated by the fact that he was granted use immunity for his trial

testimony. Harris testified that he understood he could be held in criminal

contempt if he refused to testify or gave false testimony. Thus, even if the jury

had heard testimony that the government gave Harris favorable treatment under

the Kansas plea agreement, the potential bias from such treatment is mitigated by

the specter of criminal contempt charges against Harris.

-13-
 Finally, the government’s case against Toles was strong even without the

testimony of Harris, who was the only witness who testified about Toles’ direct

involvement in certain robberies. Given Toles’ and Morris’ confessions, as well

as the corroborating evidence of the other testifying witnesses, this court is

satisfied that the limitation on the cross-examination of Harris was harmless

beyond a reasonable doubt.

C. Sufficiency of Evidence Claims

This court reviews the sufficiency of evidence de novo. See United States

v. Malone, 222 F.3d 1286, 1290 (10th Cir. 2000). We do so, however, “viewing

the evidence and the reasonable inferences to be drawn therefrom in the light

most favorable to the government. We will reverse only if no rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.”

Id. at 1290-91 (quotation omitted).

1. Hobbs Act Conviction for the Northside Tag Agency Robbery

The Hobbs Act punishes activity that “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). The statute defines “commerce” as “all commerce between any point

in a State . . . and any point outside thereof; all commerce between points within

the same State through any place outside such State.” Id. § 1951(b)(3). The

-14-
Supreme Court has stated that the Hobbs Act “speaks in broad language,

manifesting a purpose to use all the constitutional power Congress has to punish

interference with interstate commerce by extortion, robbery or physical violence.”

Stirone v. United States, 361 U.S. 212, 215 (1960).

Toles claims that there was insufficient evidence to establish the interstate

commerce requirement of the Hobbs Act for the Northside Tag Agency robbery.

He concedes that binding precedent in this circuit requires the government to

demonstrate only a de minimis effect on interstate commerce. See Malone, 222

F.3d at 1294-95 (explaining that the Supreme Court’s decisions in United States

v. Morrison, 529 U.S. 598 (2000), and Jones v. United States, 529 U.S. 848

(2000), did not affect the de minimis standard).

In this circuit, “only a potential effect on commerce is required to satisfy

the interstate commerce element.” United States v. Wiseman, 172 F.3d 1196,

1216 (10th Cir. 1999) (emphasis added); see also United States v. Chanthadara,

230 F.3d 1237, 1253-54 (10th Cir. 2000) (relying on the depletion of business

assets resulting from robbery to find potential effect on interstate commerce);

Nguyen, 155 F.3d at 1228 (same); United States v. Zeigler, 19 F.3d 486, 493 (10th

Cir. 1994) (same). Wiseman, Chanthadara, Zeigler, and Nguyen stand for the

proposition that there need not be a showing of actual effect on interstate

commerce to satisfy the de minimis requirement. See Nguyen, 155 F.3d at 1228

-15-
(collecting cases from other circuits). In Wiseman, for example, we found no

error in instructing the jury that the government could satisfy the interstate

commerce requirement merely by demonstrating that the stolen funds could have

been used to purchase goods in interstate commerce. See 172 F.3d at 1215-16.

This court sees no principled distinction between the purchase of interstate goods

in Zeigler, Nguyen, Chanthadara, and Wiseman, and the sale of goods, as

implicated here. When the affected business sold goods or services, the

government can satisfy the de minimis requirement by showing that the robbery

could have decreased the business’ sales in interstate commerce.

At trial, Thomas McGee, a clerk at the Northside Tag Agency, testified that

the agency sold vehicle tags, which are an annual license tax, and pike passes,

which permit Oklahoma and out-of-state residents to drive on Oklahoma toll

roads. The tag agency accepts out-of-state checks as payment for tags and

driver’s licenses. For pike passes, the agency accepts credit cards which are

cleared out-of-state. Moreover, McGee testified that out-of-state residents who

traveled to Oklahoma could purchase pike passes at the tag agency. The robbers

took money from the tag agency, customers, and McGee. As a result of the

robbery, the tag agency was closed for the remainder of the day.

Viewing this uncontroverted evidence and the reasonable inferences drawn

therefrom in the light most favorable to the government, as we must, a reasonable

-16-
jury could conclude that the robbery had a potential effect on interstate commerce.

It is undisputed that customers were robbed at the tag agency. The tag agency’s

closure could have prevented them from using out-of-state checks and credit cards

to purchase pike passes and license tags from the agency. See Chanthadara, 230

F.3d at 1253-54 (relying in part on business’ revenues from out-of-state credit

cards to conclude there was a de minimis effect on interstate commerce). The

agency’s closure also could have prevented potential customers from going to the

agency and using out-of-state forms of payment. Moreover, the robbery could

have delayed or obstructed sales to out-of-state residents who wished to purchase

pike passes. See United States v. Lotspeich, 796 F.2d 1268, 1270 (10th Cir.

1986). Indeed, this court concluded in Lotspeich that there was a de minimis

effect by relying in part on evidence that a business had proposed to build a

racetrack “with the hope” of attracting out-of-state customers. See id. (emphasis

added). There is thus sufficient evidence for a jury to conclude that the closing of

the tag agency could “in any way or degree obstruct[], delay[], or affect[]

commerce.” 18 U.S.C. § 1951(a); see also United States v. Boston, 718 F.2d

1511, 1516 (10th Cir. 1983) (approving jury instruction requiring government to

prove that the defendant “actually or potentially obstructed, delayed or affected

interstate commerce or attempted to do so” (emphasis added)). 6

We note that Toles does not challenge the district court’s instruction on
6

the Hobbs Act, which included in part:

-17-
 The dissent acknowledges that the evidence may have permitted the jury to

infer “some possibility” that the agency’s temporary closure prevented use of out-

of-state forms of payment. “[S]ome possibility,” however, is apparently less than

de minimis under the dissent’s view and insufficient to establish a potential effect

on interstate commerce. The dissent suggests that the government must present

evidence which would allow a jury to infer that transactions regularly involved

out-of-state payments. As the dissent recognizes, however, our cases require only

that the government demonstrate a potential effect on interstate commerce.

Evidence showing whether and to what extent a business’ historic sales derived

from out-of-state forms of payments and sales to out-of-state residents is, by

definition, unnecessary for a jury to conclude that the robbery could have impeded

the tag agency’s ability to engage in interstate commerce.

Here, there was a realistic possibility that an out-of-state resident who

wanted to purchase a pike pass at the Northside Tag Agency could not do so after

the robbery. There was also a realistic possibility that one of the customers

If in the case of the Northside Tag Agency, the government
proves beyond a reasonable doubt that the Northside Tag Agency
provided title and registration transfer services to individuals coming
to Oklahoma from outside the State of Oklahoma and/or that the
Northside Tag Agency accepted national credit cards in payment,
then you are instructed that you may find that such defendant under
consideration obstructed, delayed, or affected commerce. . . .

I R. Doc. 99 at 22.

-18-
robbed wanted to use an out-of-state check or credit card to purchase a vehicle

tag. In convicting Toles of the robbery, the jury necessarily found that there was

at least a potential effect on interstate commerce, a finding that was reasonable

and supported by the prosecution’s uncontroverted evidence. We conclude that

the government’s evidence was “not so trivial as to automatically place the[]

robber[y] beyond the reach of the Act.” 7

2. 18 U.S.C. § 924(c) Convictions

Toles argues that the government’s evidence that Toles used a real gun in

the Homeland grocery robbery and the tag agency robbery was insufficient for a

jury to convict. 8 At trial, Thomas McGee testified that one of the robbers used a

“big,” “shiny” handgun during the robbery. McGee, who had served in the

7
Toles argues that the tag agency was “a ‘state activity’ that had nothing to
do with ‘the large scale buying and selling of goods and services’ required to fall
under the definition of ‘commerce.’” To the extent that Toles raises a purely
legal claim that the robbery of a state agency cannot satisfy the “commerce”
requirement of the Hobbs Act, this court denies the claim as without merit. That
the business robbed in the instant case was a state agency, as opposed to a
commercial concern, is of no consequence. The tag agency sold goods—here,
tags and pike passes—and accepted payments like any other commercial
establishment and was engaged in interstate commerce. The Hobbs Act’s
prohibition on activity that “in any way or degree obstructs, delays, or affects
commerce or the movement of any article or commodity in commerce” is
sufficiently broad to encompass the selling of tags and pike passes. See 18 U.S.C.
§ 1951(a) (emphases added).
8
In addition, Toles contends that there was no evidence introduced at trial
that the guns used moved in or affected interstate commerce. Because 18 U.S.C.
§ 924(c) does not contain an interstate commerce requirement, Toles’ argument is
without merit and does not warrant further discussion.

-19-
military and had some familiarity with firearms, also testified he had no doubt

that the gun was real. On cross-examination, McGee testified that many imitation

guns look like real guns and that the robbers did not actually fire the gun.

Similarly, Raymond Crawford, the assistant manager at the Homeland

grocery store at the time of the robbery, testified that he had no doubt that the

robbers used a real gun. Crawford stated on cross-examination that the gun was

not fired or discharged during the robbery and that it was possible that the gun

may not have been real.

Viewing this testimony in the light most favorable to the government, a

reasonable jury could have concluded that the guns used in the Homeland and tag

agency robberies were real.

D. Government’s Closing Remarks

During the government’s rebuttal closing statement, the prosecutor stated to

the jury:

[GOVERNMENT:] You know, you come from varied backgrounds.
That’s very, very important in our system of justice. Mr. McGriff
back here with 27 proud years in the park service, and we’ve got —

[TOLES:] Your Honor, I object to this line — I object to this
comment on individual jurors.

THE COURT: Overruled.

-20-
 [GOVERNMENT:] We’ve got engineers, computers [sic], people
who work in pharmacies, bookkeepers, tailors, administrators, office
managers. You all bring collective wisdom. And the Judge is going
to tell you use your common sense, use your common sense
collectively, work together. Bring your varied backgrounds to this
task. The Judge will tell you to use your common sense.

Toles contends that the prosecutor’s remarks singling out a juror by name were

improper.

Toles also claims that the prosecutor repeatedly misstated the evidence in

his closing remarks. Specifically, he contends that the following remarks by the

prosecutor were improper: (1) Toles had spoken with Sh-Pone Harris about using

a note to commit the robberies; (2) Toles had stated in his confession that the

bank robberies were initiated by asking for change; and (3) Toles had asked

Harris, who cut Toles’ hair, to save the clippings for a disguise in the robberies.

Toles made contemporaneous objections to the first two allegedly improper

statements, but did not object to the third.

“In some circumstances, prosecutorial misconduct may be so severe that a

new trial is required.” United States v. Meienberg, 263 F.3d 1177, 1180 (10th

Cir. 2001). This court reviews de novo whether prosecutorial misconduct

occurred, which is a mixed question of law and fact. See United States v.

Gabaldon, 91 F.3d 91, 94 (10th Cir. 1996). If the prosecutor’s statement is

-21-
improper, it is harmless unless there is reason to believe that it influenced the

jury’s verdict. See id.

In assessing whether the misconduct had such an impact, we consider
the trial as a whole, including the curative acts of the district court,
the extent of the misconduct, and the role of the misconduct within
the case . . . [T]o warrant reversal, the misconduct must have been
flagrant enough to influence the jury to convict on grounds other than
the evidence presented.

Id. (quotation omitted).

In this case, the government concedes that it erred in singling out a juror by

name during closing arguments. This error, however, was harmless. The district

court instructed the jury that the closing statements were not evidence. After

Toles objected to the reference, the prosecutor did not repeat the improper remark

or mention other jurors by name. Although this court does not condone the

prosecutor’s remark in this case, the reference was not of a magnitude to warrant

reversal of the verdict.

The prosecutor’s alleged misstatements of the evidence during the

government’s closing statements, however, were not improper. All three

statements cited by Toles were either ambiguous or were inferences that a jury

could have properly drawn from the evidence. See United States v. Pena, 930

F.2d 1486, 1490 (10th Cir. 1991) (“[A] prosecutor’s summation may appropriately

suggest to the jury what inferences it ought to draw from the evidence in the

-22-
case.”). To the extent that any misstatement of the evidence could have been

construed from the prosecutor’s statements, they were harmless, or, in the case of

the third statement, did not constitute plain error. See United States v. Hooks, 780

F.2d 1526, 1532 (10th Cir. 1986).

E. Cumulative Error

Finally, Toles claims that even if each of the alleged errors do not rise to

the level of reversible error, they collectively constitute cumulative error. A

cumulative-error analysis aggregates all errors found to be harmless and “analyzes

whether their cumulative effect on the outcome of the trial is such that

collectively they can no longer be determined to be harmless.” United States v.

Rivera, 900 F.2d 1462, 1470 (10th Cir.1990) (en banc). This court considers

whether the defendant’s substantial rights were affected by the cumulative effect

of the harmless errors. Id. Only actual errors are considered in determining

whether the defendant’s right to a fair trial was violated. Id. at 1470-71. If any

of the errors being aggregated are constitutional in nature, the cumulative error

must be harmless beyond a reasonable doubt, in accordance with Chapman v.

California, 386 U.S. 18 (1967). See id. at 1470 n.6.

In this case, the only errors to be aggregated are the court’s limitation on

the cross-examination of Sh-Pone Harris, which we merely assumed was error,

and the prosecutor’s improper reference to an individual juror during closing

-23-
arguments. See Sections III.B., D., supra. After examining the proceedings in

their entirety, we cannot say that Toles’ right to a fair trial was substantially

impaired by the cumulative effect of these errors, assumed and conceded.

Accordingly, this court AFFIRMS the Defendant’s convictions in all

respects.

-24-
No. 01-5009, United States v. Toles

BRISCOE, Circuit Judge, concurring and dissenting:

I concur in the majority's resolution of all of the issues except its

affirmance of the Hobbs Act conviction, which I would reverse because of

insufficient evidence.

The Hobbs Act provides in relevant part that “[w]hoever in any way or

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

commodity in commerce, by robbery” shall be guilty of an offense against the

United States. 18 U.S.C. § 1951(a). This court has repeatedly held, even after

the Supreme Court's decision in United States v. Lopez, 514 U.S. 549 (1995),

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. E.g.,

United States v. Chanthadara, 230 F.3d 1237, 1253 (10th Cir. 2000), cert. denied,

122 S. Ct. 457 (2001). For example, this court has held that the required minimal

effect on commerce may be established by evidence that the robbery at issue

depleted the assets of a business that customarily purchased items in interstate

commerce. E.g., United States v. Nguyen, 155 F.3d 1219, 1224 (10th Cir. 1998).

At the trial in this case, the government presented evidence indicating that

the Northside Tag Agency essentially operated as a collection agency for the State

of Oklahoma and provided three general types of goods or services to its

customers: (1) it made pictures for drivers' licenses and Oklahoma state
identification cards; (2) it sold Oklahoma license plates for all types of vehicles;

and (3) it sold passes for the Oklahoma turnpike. As for the details of the

robbery, the government presented evidence that Toles and others entered the

Agency at approximately 12:05 p.m. on April 1, 1999, and proceeded to take

money from the Agency and the Agency's employees and customers. The

government's evidence further indicated that, as a result of the robbery, the

Agency was forced to close its operations for the afternoon following the robbery.

The government relied on two very limited categories of evidence (both

based on the brief testimony of a single witness who worked at the Agency) to

attempt to establish that the robbery had the required minimal effect on interstate

commerce. First, the government focused on the Agency's customers, presenting

testimony that some of the customers had moved to Oklahoma from other states

and were seeking Oklahoma tags and drivers' licenses, and that out-of-state

residents could purchase Oklahoma turnpike passes. Second, the government

presented testimony regarding forms of payment accepted by the Agency -- it

accepted major credit cards whose payments were processed out-of-state, and it

accepted out-of-state checks for tags and drivers' licenses.

In my view, only the second of these categories has any relation to

interstate commerce. The Hobbs Act defines “commerce” as “all commerce

between any point in a State . . . and any point outside thereof; all commerce

-2-
between points within the same State through any place outside such State.” 18

U.S.C. § 1951(b)(3). The fact that out-of-state residents may have visited the

Agency and purchased items does not satisfy this statutory definition. In other

words, barring some additional fact (such as use of an out-of-state form of

payment), such a transaction would not involve “commerce between any point in a

State . . . and any point outside thereof” or “commerce between points within the

same State through any place outside such State.” 1 In contrast, the Agency’s

acceptance of major credit cards and out-of-state checks does fall within the

statutory definition since it would involve “commerce between points within the

same State through any place outside such State.”

I further conclude that the government's evidence was insufficient to

establish that the robbery had the required minimal effect on interstate commerce.

Although we generally allow juries in Hobbs Act cases to draw reasonable

inferences from the evidence, the government's evidence here was so limited that

the jury, in order to convict Toles, was required to “pil[e] inference on inference.”

United States v. Sanders, 240 F.3d 1279, 1283 (10th Cir. 2001) (internal

quotations omitted). In particular, because there was no evidence as to whether

and to what extent the Agency's transactions involved use of credit cards or out-

of-state checks, the jury first was required to infer whether and to what extent

1
It appears that the majority does not rely on the out-of-state resident
evidence either.

-3-
such forms of payment were used by Agency customers. Only after doing so, and

presumably inferring that such forms of payment were regularly used, could the

jury have inferred that the forced closure of the Agency following the robbery

probably prevented one or more customers from engaging in transactions and

using such forms of payment. 2 The mere fact that credit cards or out-of-state

checks could be used to purchase goods and services at the Agency does not

establish without further evidentiary foundation that they were used.

It is true, as pointed out by the majority, that we previously have stated that

the government need only establish a potential or probable, as opposed to an

actual, effect on interstate commerce. See Nguyen, 155 F.3d at 1228. In my

view, however, the majority takes our previous statements to an unprecedented

extreme, suggesting that literally any possibility, even in the absence of any

evidence pertaining to the business' past experience, is sufficient to establish the

required de minimis effect on interstate commerce. This overlooks the fact that

other circuits have held, and we seemingly have agreed, that if the government is

seeking to establish a probable rather than a direct effect, the government must

demonstrate a probability and that the probability was realistic. E.g., United

2
In my view, the government could have met its evidentiary burden by
either presenting evidence regarding how frequently the Agency accepted out-of-
state forms of payment (e.g., regularly), or by presenting evidence that one or
more customers in the Agency at the time of the robbery intended to use an out-
of-state form of payment.

-4-
States v. Peterson, 236 F.3d 848, 851-52 (7th Cir. 2001) (“We have long held that

the government need only show some actual, even if de minimis, effect, or, where

there is no actual effect, a realistic probability of an effect, on interstate

commerce.”); United States v. Kaplan, 171 F.3d 1351, 1354 (11th Cir. 1999)

(same); Nguyen, 155 F.3d at 1228 (citing cases from other circuits for this

proposition); United States v. Buffey, 899 F.2d 1402, 1404 (4th Cir. 1990)

(“[B]roadly as the extension of the interstate commerce requirement has spread,

we are still a federal, not a unitary, government and, to satisfy the Act, the

government still must show that an effect on interstate commerce is reasonably

probable.”). While the government's evidence may have allowed the jury to infer

there was some possibility, however remote, that the temporary closure of the

Agency prevented use of out-of-state forms of payment, it was not sufficient to

establish that this was a reasonable probability. Instead, as previously noted, the

jury could have reached such a conclusion only by piling inference upon

inference.

The mere proof that the Agency accepted out-of-state forms of payment is

not enough, standing alone, to establish that interstate commerce was affected. In

Nguyen and Chanthadara, we did not rely exclusively on the acceptance of out-of-

state credit cards to establish the interstate commerce requirement. We also relied

on the additional evidence that a percentage of the restaurant's revenues was

-5-
generated through the use of out-of-state credit cards, that the restaurant

purchased goods from several other states, and that sales fell after the robbery.

As a result, interstate commerce was affected by the decline in credit card sales

and the reduction in purchases from out-of-state vendors.

Finally, it is clear that the government cannot rely on the asset depletion

theory utilized in Nguyen and Chanthadara. Under that theory, the robbery of a

small amount of money from a business that purchases goods from another state

can be deemed to have a sufficient potential aggregate effect on interstate

commerce. Here, however, there was no evidence that the Agency itself

purchased any items in interstate commerce. Cf. Chanthadara, 230 F.3d at 253

(concluding robbery of restaurant had effect on interstate commerce where

robbery forced restaurant to close for twenty-two days and its revenues dropped

markedly after it reopened, causing a reduction in the restaurant's out-of-state

purchasing).

In sum, the government's evidence was insufficient to support a Hobbs Act

conviction. I would reverse Toles' conviction and vacate his sentence on this

count.

-6-