Case: 11-20206 Document: 00511800940 Page: 1 Date Filed: 03/26/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 26, 2012
No. 11-20206 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
STEVEN T. CARR,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CR-197-2
Before JONES, Chief Judge, and PRADO and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Steven T. Carr was convicted by a jury of one count of conspiring to
interfere with interstate commerce by robbery and one count of aiding and
abetting a robbery that interfered with interstate commerce, in violation of 18
U.S.C. § 1951 – the Hobbs Act. On appeal, he asserts that the Hobbs Act is
unconstitutional as applied to his conduct, his sentence is improper, and he was
denied a fair trial because the jurors saw him in handcuffs and prison clothing.
We AFFIRM.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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FACTS
This case arises from a dispute over the international shipment of scrap
metal. A broker and two groups of buyers of scrap metal were in India. Two
other brokers in Houston, Texas, a buyer/broker in Florida, and the company
that actually owned the scrap metal in New Jersey, had roles in the transaction.
One of the businesses, BNP Imports, located in Houston, was owned by
Gope Pagarani. He was the victim in the crime underlying this Hobbs Act
prosecution. Pagarani operated a scrap metal yard in Houston and also was a
broker. He was hired by a scrap metal broker in India to assist in completing a
purchase of metal located in a New Jersey yard owned by Trenton Iron and
Metals. Pagarani had an established business relationship with the companies
for whom the broker in India worked. Another Houston broker, Osaka Metals,
had already purchased the scrap metal from Trenton and reached an agreement
on its sale with the Indian broker. Osaka had not been informed, though, of the
identity of the companies for whom the broker worked. Pagarani testified that
he was hired to keep the identities secret.
To maintain that secrecy, Pagarani would use his company’s established
line of credit with Wells Fargo, a federally-insured bank. Using this line of
credit as well as some of its own money, Pagarani purchased $497,000 of scrap
metal from Osaka. Shortly after this purchase, Pagarani was contacted by Alfa
Metals, a Florida firm. Alfa also wanted to buy scrap metal for a buyer in India.
It paid Pagarani approximately $270,000 for a portion of the scrap metal it was
buying from Osaka.
The scrap metal itself remained in New Jersey. Pagarani went to inspect
the metal early in the negotiations and found it to be acceptable. Once all the
agreements were finalized among the different parties, the scrap metal was
supposedly shipped from New Jersey to India in 81 containers. Of those, 31
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containers went to the buyers for whom Alfa had contracted. Upon arrival in
India, it was discovered that the containers held only landfill garbage.
Pagarani was told that the buyers in India would not pay anyone until
they received the scrap metal. Pagarani traveled to New Jersey to meet with
Alfa and Trenton Iron representatives. Trenton said it would look into the
problem but made no commitments. Alfa, represented by Carr and another
individual, demanded a full and immediate refund from Pagarani. The latter
agreed to refund the money but explained that he could not do so until he had
himself received a refund. Pagarani returned to Texas without paying.
Two weeks later, Carr traveled from New Jersey to Houston to press his
demand. Carr did so forcefully, ambushing Pagarani in his office. For over four
hours, Carr and another man threatened Pagarani and struck him multiple
times. Eventually, Pagarani wrote six checks. Five were made out to Alfa and
served as a refund. The sixth, for $25,000, was payable to Carr personally. He
demanded the payment as the equivalent of a collection fee.
Carr immediately cashed his check. Due to insufficient funds remaining
in the account, the remaining checks were cancelled. A refund was then made
via wire transfer, relying on the line of credit extended to BNP by the federally-
insured bank.
A few days later, Pagarani reported these events to the FBI. Following an
investigation, a federal grand jury returned a two-count indictment against
Carr. He was tried before a jury in the United States District Court in the
Southern District of Texas. After a three-day trial, the jury found Carr guilty
of both counts. The district court sentenced Carr to concurrent terms of 87
months imprisonment and three years of supervised release. He was also
ordered to pay $175,000 in restitution. This appeal followed.
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DISCUSSION
Carr argues that the Hobbs Act, 18 U.S.C. § 1951, is unconstitutional as
applied to him because the government did not prove that Congress can regulate
his conduct under the powers granted to it by the Commerce Clause. See U.S.
Const. art. I, § 8, cl. 3. He positions his argument as an attack on the sufficiency
of the evidence. Because he did not preserve a challenge to the sufficiency of the
evidence by moving for a judgment of acquittal under Federal Rule of Criminal
Procedure 29(a) or (c), we review for plain error. United States v. Morganfield,
501 F.3d 453, 461 (5th Cir. 2007). His conviction will be reversed only to prevent
a “manifest miscarriage of justice.” Id. (quotation marks and citation omitted).
This standard is not met unless “the record is devoid of evidence pointing to guilt
or contains evidence on a key element of the offense that is so tenuous that a
conviction would be shocking.” United States v. Dowl, 619 F.3d 494, 500 (5th
Cir. 2010) (quotation marks and citation omitted). “In reviewing the record, this
Court must consider all the evidence, direct and circumstantial, in the light most
favorable to the jury’s verdict, accepting all reasonable inferences and credibility
choices in favor of that verdict.” United States v. Griffin, 324 F.3d 330, 356 (5th
Cir. 2003) (quotation marks and citation omitted).
A person violates the Hobbs Act if he (1) robs, extorts, or attempts or
conspires to rob or extort; and (2) the conduct interferes with interstate
commerce. United States v. Robinson, 119 F.3d 1205, 1212 (5th Cir. 1997). Carr
challenges only the second element.
Carr argues the government failed to prove that the aggregation of other
conduct similar to his own, namely violent robbery, would have a substantial
effect on interstate commerce. The aggregation principle is important when
conduct impedes commerce that is purely local. See id. at 1208. That principle
is not important here. Evidence admitted at trial showed that Carr robbed and
assaulted Pagarani in Houston, who had brokered a commercial trade involving
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companies in Florida, New Jersey, Texas, and India. Carr’s assault and robbery
not only scuttled any attempt to salvage the transaction, but also caused BNP
to draw on its line of credit with a federally-insured bank.
The record is not devoid of evidence of guilt. Nor are we shocked by the
jury’s decision to convict. There was no plain error as to evidentiary sufficiency.
Carr also challenges his concurrent 87-month sentences, asserting that the
district court erred in imposing a two-level sentencing enhancement under
U.S.S.G. § 2B3.1(b)(2)(F) for a threat of death. We review the district court’s
interpretation of the Guidelines de novo and its findings of fact for clear error.
United States v. Olguin, 643 F.3d 384, 400-01 (5th Cir. 2011).
The enhancement may apply even when the death threat is not express.
U.S.S.G. § 2B3.1 cmt. n.6. According to the trial testimony, Carr held a deadbolt
lock to Pagarani’s head and threatened to break his head with it. Carr also
advised Pagarani that he would not be going home that night if he did not give
him the money. Although Pagarani’s wife sent the police away from the office
during the assault, she explained she did so because Carr and his partner had
intimated knowing where they lived. She feared they would return to their
home later that night, angry because of the police intervention. The district
court’s conclusion that Carr’s statements on the night of the robbery rose to the
level of a threat of death is not “implausible in light of the record as a whole.”
United States v. Griffith, 522 F.3d 607, 611-12 (5th Cir. 2008).
In his final ground for relief, Carr contends that his conviction should be
reversed because two jurors witnessed him outside the courtroom wearing jail
clothing and handcuffs. As he concedes, he made no objection to the district
court, and thus we review for plain error. See United States v. Montes, 602 F.3d
381, 386 (5th Cir. 2010). The record does not reflect that this viewing occurred
and thus does not establish a clear or obvious error. See Puckett v. United
States, 556 U.S. 129, 135 (2009). In addition, because Carr has not affirmatively
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shown prejudice arising from this viewing, he is unable to establish a violation
of his substantial rights. Id.
Because Carr has failed to show that he is entitled to relief, the judgment
of the district court is AFFIRMED.
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