United States v. Collins

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-1670

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus

BENNY LAVERN COLLINS,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Texas

(December 2, 1994)

Before POLITZ, Chief Judge, GOLDBERG and DUHÉ, Circuit Judges.

POLITZ, Chief Judge:

Benny Lavern Collins appeals his convictions for obstructing

commerce by robbery1 and for using or carrying a firearm during a

crime of violence.2 We affirm in part and reverse in part.

Background

On October 30, 1991, Collins robbed a Denny's restaurant in

Dallas, Texas at gunpoint. Despite a high-speed chase and

1
18 U.S.C. § 1951(a), also known as the "Hobbs Act."
2
18 U.S.C. § 924(c)(1).
subsequent manhunt, Collins eluded authorities. Shortly thereafter

Collins appeared at the home of Steve Winn, an employee of a

national computer company whom he robbed at gunpoint, absconding

with cash, jewelry, clothes, and Winn's Mercedes-Benz with its

cellular telephone. After abandoning the car in Houston, Collins

flew to Los Angeles. In due course he was arrested there and

returned to Texas.

Collins was indicted, tried, and found guilty by a jury of

obstruction of interstate commerce by robbing a Denny's restaurant

employee, using a firearm during this crime of violence,

obstruction of interstate commerce by robbing Steve Winn, and using

a firearm during this crime of violence. The district court

sentenced Collins to concurrent 250-month sentences on the section

1951(a) violations, and a total of 300 months on the section

924(c)(1) violations, to run consecutively to the sentences imposed

for the section 1951(a) violations. The instant appeal timely

followed.

Analysis

Collins first challenges the use of his confession at trial,

claiming that it was not free and voluntary because he was not

properly informed of his constitutional right to counsel and his

guaranty against self-incrimination. The district court found that

Collins' confession was the product of a knowing and voluntary

waiver of his Miranda3 rights, and declined to suppress the

evidence.

3
Miranda v. Arizona, 384 U.S. 436 (1966).

2
 For the confession to be admissible at trial the government

had to show that Collins was informed of his Miranda rights and

that his waiver thereof and the resultant confession were the

"product of a free and deliberate choice."4

Collins maintains that he was never properly informed of his

Miranda rights as the FBI agents, before the admittedly-custodial

interrogation began, failed to reinform him verbally of the full

extent of his rights to an attorney and to remain silent. Instead,

the agents gave him a written waiver-of-rights form which detailed

these rights and then unsuccessfully sought his signature thereon.

Collins insists that the mere placement of the form in front of him

without some proof that he actually read and comprehended the

document was not adequate proof that he was informed of his rights

and had waived same. As a consequence, he claims that the

subsequent confession was not knowing and voluntary.

It is axiomatic that an accused must be informed of his

Miranda rights in a way that ensures his knowing, intelligent, and

voluntary exercise or waiver thereof.5 The record supports the

district court's finding that Collins was effectively informed of

his rights. Collins perused the form for a minute before returning

it to the agents with the words "I ain't signing that." One agent

testified that Collins appeared to read and understand the form.

We perceive no error in the district court's crediting of this

4
Moran v. Burbine, 475 U.S. 412, 421 (1986).
5
United States v. Montos, 421 F.2d 215 (5th Cir.), cert.
denied, 397 U.S. 1022 (1970).

3
testimony and determining that Collins was informed of and

understood his rights6 considering his age -- 38, his education --

GED degree, and his familiarity with the criminal justice system as

a consequence of his extensive criminal history.7

Whether Collins waived his Miranda rights presented a factual

question for the district court.8 Such waivers may be direct or,

in some instances, they may "be clearly inferred from the actions

and words of the person interrogated."9 The mere answering of

questions is insufficient to show waiver; however, there must be

some affirmative action demonstrating a waiver of Collins' Miranda

rights.10 We find such action to be present herein.

The record reflects that after Collins refused to sign the

form one of the agents told him, "You know, you can talk to us if

you want. You don't have to. You read the form. But if you want

to talk to us, you can." At that point Collins replied "Okay."

6
See United States v. Bailey, 468 F.2d 652 (5th Cir. 1972)
(presentation of written warnings sufficient to satisfy Miranda).
Accord, United States v. Van Dusen, 431 F.2d 1278 (1st Cir. 1970),
and Fritts v. United States, 395 F.2d 219 (5th Cir. 1968).
7
See Poyner v. Murray, 964 F.2d 1404 (4th Cir.), cert. denied,
_____ U.S. _____, 113 S.Ct. 49 (1992). The contention that the
agent was unable to determine if Collins actually read the form is
"specious," as "it would likewise be impossible to attest that
someone is in fear of pain, or that a person understood what he was
saying; yet the abstract plausibility of such epistemological
skepticism does not justify actual doubts in either everyday life
or the law which governs it." United States v. Heredia-Fernandez,
756 F.2d 1412, 1416 (9th Cir.), cert. denied, 474 U.S. 836 (1985).
8
United States v. Foy, 28 F.3d 464 (5th Cir. 1994).
9
North Carolina v. Butler, 441 U.S. 369, 373 (1979).
10
See McDonald v. Lucas, 677 F.2d 518 (5th Cir. 1982).

4
Thereafter, upon being questioned about the Dallas robberies he

confessed. In this setting, the trial court did not err in finding

that Collins waived his Miranda rights. The confession was

properly admitted.11

Collins next claims that the evidence is insufficient to

support a finding that his robbery of Winn obstructed interstate

commerce, an essential element of federal criminal jurisdiction.12

Such challenges to evidentiary sufficiency are reviewed in the

light most favorable to the verdict, inquiring only whether a

rational juror could have found each element of the crime proven

beyond a reasonable doubt.13

At trial the government argued that Collins' theft of Winn's

personally-owned vehicle affected interstate commerce by the

consequent adverse effect on the company's potential for conducting

interstate business -- the robbery prevented Winn from attending a

business meeting and prevented his use of his cellular phone to

make business calls. Alternatively, the government contended that

as the stolen vehicle had traveled in interstate commerce, its

theft somehow affected it. Although the government need only show

11
Even if there were error in the admission of the confession
it would be harmless in light of the overwhelming evidence linking
Collins to the robberies, including his positive identification as
the perpetrator by all of the victims and eyewitnesses, the
presence of his checkbook and prescription bottle in the getaway
vehicle, his fingerprints found at the Winn residence, and his
possession of the jewelry, clothes, and vehicle stolen from Winn.
See Chapman v. California, 318 U.S. 18 (1967), and Arizona v.
Fulminante, 499 U.S. 279 (1991).
12
Stirone v. United States, 361 U.S. 212 (1960).
13
Jackson v. Virginia, 443 U.S. 307 (1979).

5
that the robbery of Winn had a de minimis effect on interstate

commerce to secure federal jurisdiction under section 1951(a),14

both of these propositions are too attenuated to satisfy the

interstate commerce requirement.

Both direct15 and indirect affects on interstate commerce may

violate section 1951(a). The government's "depletion-of-assets"

theory falls into the indirect category. This theory relies on a

minimal adverse effect upon interstate commerce caused by a

"depletion of the resources of the business which permits the

reasonable inference that its operations are obstructed or

delayed."16 This thesis usually is applied to businesses or similar

entities engaged in interstate commerce,17 as "[i]n general . . .

14
United States v. Wright, 797 F.2d 245 (5th Cir. 1986), cert.
denied, 481 U.S. 1013 (1987).
15
See United States v. Stephens, 964 F.2d 424 (5th Cir. 1992)
(extortion of interstate travelers directly affected interstate
commerce); United States v. Heidecke, 900 F.2d 1155 (7th Cir. 1990)
(extortion of funds for driver's license from traveling salesman
directly violative of Act); and United States v. Jarabek, 726 F.2d
889 (1st Cir. 1984) (extortion of business engaged in interstate
commerce directly violates section 1951(a)).
16
Esperti v. United States, 406 F.2d 148, 150 (5th Cir.), cert.
denied, 394 U.S. 1000 (1969).
17
See United States v. Martinez, 38 F.3d 444 (5th Cir. 1994)
(robbery-induced closure of business dealing in interstate goods
interrupts flow of interstate commerce); United States v. Richard,
9 F.3d 102 (5th Cir. 1993) (unpublished opinion) (temporary closure
of store following robbery sufficient interference with interstate
commerce); United States v. Frasch, 818 F.3d 631 (7th Cir. 1987)
(payment of bribe affects business's purchase of interstate goods);
United States v. Curcio, 759 F.2d 237 (2d Cir.), cert. denied, 474
U.S. 848 (1985) (extortionate conduct toward a bar affects
interstate liquor purchases); and United States v. Pearson, 508
F.2d 595 (5th Cir.), cert. denied, 423 U.S. 845 (1975) (robbery of
hotel affects interstate commerce).

6
businesses purchase on a larger scale than individuals[, and]

extortion [and robbery are] likely to have a greater effect on

interstate commerce when directed at businesses rather than

individuals."18

Criminal acts directed toward individuals may violate section

1951(a) only if: (1) the acts deplete the assets of an individual

who is directly and customarily engaged in interstate commerce;19

(2) if the acts cause or create the likelihood that the individual

will deplete the assets of an entity engaged in interstate

commerce;20 or (3) if the number of individuals victimized or the

sum at stake is so large that there will be some "cumulative effect

on interstate commerce."21 "However, as broadly as the extension

of the interstate commerce requirement has spread, we are still a

federal, not a unitary government"22 and, "neither the

18
United States v. Boulahanis, 677 F.2d 586, 590 (7th Cir.),
cert. denied, 459 U.S. 1016 (1982).
19
United States v. Merolla, 523 F.2d 51 (2d Cir. 1975).
20
See United States v. DeParias, 805 F.2d 1447 (11th Cir.),
cert. denied, 482 U.S. 916 (1986) (kidnapping and extortion created
the probability of using interstate entity's funds to pay ransom),
and United States v. Chiantese, 582 F.2d 974 (5th Cir. 1978), cert.
denied, 441 U.S. 922 (1979) (attempted extortion of individual
could cause depletion of funds of his interstate business).
21
Jund v. Town of Hempstead, 941 F.2d 1271, 1285 (2d Cir.
1991). See also United States v. Farrell, 877 F.2d 870 (11th
Cir.), cert. denied, 493 U.S. 922 (1989) (extortionate sum demanded
from individuals so high that it "would have affected interstate
commerce to a legally cognizable degree"), and United States v.
Murphy, 768 F.2d 1518 (7th Cir. 1985), cert. denied, 475 U.S. 1012
(1986) (payment of bribes by lawyers depleted aggregate ability to
purchase law books and office supplies that moved in interstate
commerce).
22
United States v. Buffey, 899 F.2d 1402, 1404 (4th Cir. 1990).

7
constitutional limits on the power of the national government, nor

the jurisdictional requirement of some connection with interstate

commerce may be ignored."23

In this case the government showed neither a robbery of a

business nor an actual or potential direct effect on a business

caused by the robbery of an individual. Nor did the government

show the robbery of an individual directly engaged in interstate

commerce, or the robbery of so many individuals or of so great a

sum that interstate commerce realistically would be affected.

Rather, the evidence establishes that Winn was an individual whose

only connection with interstate commerce was his employment by a

business engaged in interstate commerce. It is suggested that the

robbery might have affected the performance of his employment

duties. This linkage to his business is much too indirect to

present a sufficient nexus with interstate commerce to justify

federal jurisdiction.

We are persuaded that if the robbery of an individual were

found to affect interstate commerce merely because of the real or

perceived disruption of the individual's business by interfering

with his work, the reach of section 1951(a) would be ubiquitous,

and any robbery, in our closely-interwoven economy, arguably would

affect interstate commerce. Given the fact that "[t]he Hobbs Act

definition of commerce is coextensive with the constitutional

23
United States v. Mattson, 671 F.2d 1020, 1023 (7th Cir.
1982).

8
definition,"24 and that the congressional commerce power extends

only to conduct which "exerts a substantial economic effect on

interstate commerce,"25 it is manifest that Congress may not

regulate conduct that, standing alone, does not directly affect

interstate commerce or have a direct effect on a business engaged

in interstate commerce.

A finding of the requisite nexus herein would be in stark

conflict with the principle that our federal government has limited

and enumerated powers, with routine police power generally being

reserved to the states.26 Such a facile construction of the Hobbs

Act as suggested by the government would ignore the tenet that,

"unless Congress conveys its purpose clearly, it will not be deemed

to have significantly changed the federal-state balance."27 There

is no such intent in either the express language or legislative

history of the Hobbs Act. To the contrary, it is clear that the

Hobbs Act was intended to reach only certain activities that hamper

interstate business, reflecting the long-recognized principle that

the states are best positioned and equipped to enforce the general

criminal laws.28 We are persuaded that the robbery of Winn -- which

24
United States v. Hanigan, 681 F.2d 1127, 1130 (9th Cir.
1982), cert. denied, 459 U.S. 1203 (1983).
25
United States v. Lopez, 2 F.3d 1342, 1361 (5th Cir. 1993),
cert. granted, _____ U.S. _____, 114 S.Ct. 1536 (1994), citing
Wickard v. Filburn, 317 U.S. 111, 125 (1942).
26
See Gregory v. Ashcroft, 501 U.S. 452 (1991), and Lopez.
27
United States v. Bass, 404 U.S. 336, 349 (1971).
28
See 91 Cong. Rec. 11910, 11922 (1945). See also United
States v. Culbert, 435 U.S. 371 (1978).

9
caused only a speculative indirect effect on a business engaged in

interstate commerce -- falls into this general category of crimes

which the states are best equipped to handle and, in the absence of

evidence showing some direct or substantial indirect effect on

interstate commerce, the Hobbs Act does not apply. The conviction

of Collins for a Hobbs Act violation as a consequence of the Winn

robbery must be reversed.29

Collins also correctly claims that if the Winn-related

conviction is reversed the attendant unlawful use of a firearm

charge must also fall. Section 924(c)(1) requires that the

underlying offense be a federal crime and, as the robbery-of-Winn

conviction for violation of section 1951(a) is now voided, the

conviction for unlawful use of a firearm during that robbery also

must be reversed.

Collins further correctly notes that the sentences imposed for

his violations of section 1951(a) were excessive and must be

vacated. The district court, pursuant to the Guidelines,

determined the sentencing range for each violation of section

1951(a) to be 210-262 months, and sentenced Collins to 250 months

on each count. Sentences may not exceed the maximum statutory

29
The same considerations bar the government's alternative
argument that, as the stolen car itself had once traveled in
interstate commerce, its theft somehow affected interstate
commerce. This contention is based on a misplaced reliance on
United States v. Samuels, 14 F.3d 52 (5th Cir. 1993) (unpublished
opinion), which found a section 1951(a) violation in the theft of
a business-owned vehicle. We decline the invitation to extend this
holding to the theft of a privately-owned vehicle.

10
limit.30 The maximum sentence for a section 1951(a) violation is

240 months. As we have reversed the conviction and sentence on the

Winn-robbery section 1951(a) count, we need only vacate and remand

for resentencing on the Hobbs Act count for the Denny restaurant

robbery.

Capsulating, we AFFIRM the section 1951(a) conviction for the

Denny restaurant robbery but VACATE the sentence imposed and REMAND

for resentencing. We AFFIRM the section 924(c)(1) conviction and

sentence for the Denny restaurant-related offense. We REVERSE the

convictions and sentences for the section 1951(a) and section

924(c)(1) charges arising out of the Winn robbery.

30
See United States v. Taylor, 868 F.2d 125 (5th Cir. 1989).

11