UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-51050
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
GARY PATRICK NUTALL and RAYMOND ANDRE NUTALL,
Defendants-Appellants.
Appeals from the United States District Court
For the Western District of Texas
June 25, 1999
Before EMILIO M. GARZA, DeMOSS, and PARKER, Circuit Judges.
PARKER, Circuit Judge:
Brothers Raymond Andre Nutall and Gary Patrick Nutall were
convicted of conspiracy to interfere with commerce by robbery,
interfering with commerce by robbery, and using and carrying a
weapon during a crime of violence. Gary Patrick Nutall appeals,
contending that the district court, in denying his motion to sever
the trial, violated his right to a fair trial and his right to
confrontation. Raymond Andre Nutall also appeals, contending that
the Government failed to produce sufficient evidence of an effect
on interstate commerce. We AFFIRM.
I. FACTS AND PROCEEDINGS
1
On December 29, 1995, a robbery occurred at the Ace America
Cash Express store on Fredericksburg Road in San Antonio, Texas
just after closing. One man, armed with a gun, demanded money from
the Ace America manager Charles Milburn. The man ordered Milburn
to enter the store and open the safe. Milburn opened the door to
the store and disarmed the alarm. As the men entered the store,
the robber placed a mask over his face. After receiving money, the
man ordered Milburn to sit down, tied Milburn's hands together, and
took Milburn's wallet.
On February 2, 1996, a man attempted to commit a robbery at
the Ace America store on Cross Creek Road in San Antonio. A man
with a gun approached Lenny Alcorta as she exited the store. The
man pointed a gun at Alcorta's head and ordered her to re-enter the
store and disarm the alarm. Upon disarming the alarm, Alcorta was
ordered to open the safe. She attempted to open the safe but was
unsuccessful. The man stole Alcorta's purse, including her
identification and approximately $500 in cash.
Following the robbery and the attempted robbery at the Ace
America stores, San Antonio police detective William Biesenbach
conducted surveillance of two men in March and early April, 1996.
Biesenbach later identified these men as Gary Nutall and Raymond
Nutall. Detective Biesenbach followed the two men as they stopped
at, and drove by approximately 10 offices of four different check
cashing businesses in San Antonio, Texas. Detective Biesenbach
estimated that the two men drove by the businesses approximately 25
times.
2
Biesenbach identified two vehicles that the men used in
driving by the businesses: a black Nissan 200SX and a white Nissan
Altima. Raymond Nutall owned the 200SX and Gary Nutall owned the
Altima. During the drive-bys, Gary Nutall drove the vehicle while
Raymond Nutall sat in the passenger seat. On a number of
occasions, Biesenbach observed Gary Nutall cover the license plate
on his Altima with the license plate from another vehicle or switch
plates before driving by businesses. Biesenbach also observed
Raymond Nutall place a gym bag in Gary Nutall's car on two
occasions.
On April 1, 1996, Biesenbach stopped the Altima and arrested
Gary and Raymond Nutall. Biesenbach testified that he located a
gym bag in the back seat of the car that contained a revolver, a
ski mask, a rubber mask, gloves, pillow cases, a knife, binoculars,
and duct tape. Biesenbach further testified that when he stopped
the Appellants, the license plate on the Altima belonged to another
vehicle and that the Altima's plates were in the trunk. An officer
assisting in the arrest testified that he found gloves in Gary
Nutall's front pants pocket. In written statements, both
Appellants confessed to “casing” the various check cashing
businesses.
At trial, the Government presented evidence of Gary Nutall and
Raymond Nutall’s involvement in the December, 1995 robbery at the
Fredericksburg Road Ace America store. Milburn identified various
items that belonged to the Appellants that were similar to items
used by the robber, including a mask and a flowered pillow case.
3
Milburn also identified a purple strap found at Raymond Nutall's
apartment. These straps are used by Ace America to bind money.
Milburn also said that the Government's exhibit, a semi-automatic
pistol belonging to Robert Taylor, was similar to the firearm used
by the robber. In written statements, both Appellants confessed to
participating in the Fredericksburg Road Ace America robbery.
The Government also produced evidence of Gary Nutall and
Raymond Nutall’s involvement in the February, 1996 attempted
robbery at the Cross Creek Ace America store. At trial, Alcorta
identified a black jacket found in Raymond Nutall's car as the
jacket that the robber wore. She also testified that a ski mask
found in a gym bag in Gary Nutall's car was the same color as the
one worn by the robber. The Government introduced evidence located
by the San Antonio police at Raymond Nutall’s apartment, including
Alcorta's driver's license, manager's card, address book, and other
personal belongings. In written statements, both Appellants
confessed to the February, 1996 attempted robbery of the Cross
Creek Ace America store.
The Government also offered evidence that the Appellants
exhibited a sudden increase in available cash following the
December, 1995 robbery. On December 30, 1995, Gary Nutall paid
$5,460 toward the purchase of a white Nissan Altima. In January,
1996, he returned to the Nissan dealership to install a CD player,
an alarm, and tinting and while there, he showed one of the
salespeople clothes in the trunk that he recently had purchased.
In February, 1996, Raymond Nutall purchased a Nissan 200SX, and
4
also made cash purchases of clothing and jewelry.
Appellants were charged in a five count indictment with
conspiracy to interfere with commerce by robbery, 18 U.S.C. § 1951,
two counts of interference with commerce by robbery, 18 U.S.C. §§
2, 1951 (Counts Two and Four), and with two counts of using and
carrying a firearm during and in relation to a crime of violence,
18 U.S.C. §§ 2, 924(c)(1) (Counts Three and Five).
Despite his confession and the evidence against him, Gary
Nutall later denied robbing the Ace America store in December,
attempting to rob the Ace America store in January, and casing
check cashing businesses and making plans to rob them. With
respect to the written confession, Gary Nutall explained that he
could not read nor write very well, and when he signed the
confession written by FBI Agent Henry, he did not know what the
statement said. He also claims that he only admitted his role in
the alleged crimes because Agent Henry continued to question and
threaten him with an extensive prison sentence. In addition, Gary
Nutall explained that his other brother, Paul Nutall, gave him the
money to purchase the white Nissan and took him to a clothing store
to purchase some new clothes. Finally, he presented two alibi
witnesses, his brother-in-law and his nephew, who testified that
Gary Nutall was at home with his family on the night the store was
robbed.
A jury convicted Appellants on all counts.
II. ANALYSIS
Raymond Nutall raises two arguments on appeal: (1) the
5
Government failed to show the requisite effect on interstate
commerce; and (2) the district court erred when it gave jury
instructions relating to the effect on interstate commerce. Gary
Nutall raises three issues on appeal: (1) the district court abused
its discretion in denying his motion to sever; (2) the district
court committed Bruton error in admitting the confession of Raymond
Nutall which included a clear reference to Gary Nutall; and (3) the
trial court erred when it erroneously admitted irrelevant evidence.
We AFFIRM.
A. Raymond Andre Nutall
1. Effect on Interstate Commerce
Raymond Nutall claims that the evidence is insufficient to
support a finding that his robbery obstructed interstate commerce,
an essential element of federal criminal jurisdiction. This Court
reviews such challenges to evidentiary sufficiency 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. See United States v. Collins, 40 F.3d 95, 99
(5th Cir. 1994) (citing Jackson v. Virginia, 443 U.S. 307 (1979)).
Initially, we must address the amount of effect required on
interstate commerce under the Hobbs Act. The evidence in this case
satisfies the impact on commerce required for Hobbs Act
jurisdiction under United States v. Robinson, 119 F.3d 1205 (5th
Cir. 1997). Ace America Cash Express is a nationwide company that
cashes checks and sells money orders. Ace cashes checks from in-
state and out-of-state banks. Before checks are cashed, Ace places
6
phone calls to verify the legitimacy of the checks and whether
there is sufficient funds to cover the checks. Ace sells money
orders which are drawn from out-of-state banks and Ace sends and
receives wire-transferred money to and from points outside of Texas
and outside of the United States. In addition, Ace electronically
files tax returns for its customers. Tax returns are transferred
to Seattle, Washington. Ace stores typically maintain large
amounts of cash at their stores.
The Government, relying on a depletion of assets theory,
offered evidence that the Appellants received more than $27,000
from the Ace America robbery. The theft of this money prevented
Ace America from conducting its business which operated in
interstate commerce. It is clear that this Court has approved the
depletion of assets theory as a method for showing an effect on
interstate commerce. See United States v. Collins, 40 F.3d 95, 99-
100 (5th Cir. 1994). Further, the Government offered evidence that
the robbery prevented Ace America from being able to cash one check
on the day of the robbery. The Government established the
requisite effect on interstate commerce.
2. Instruction on Effect on Interstate Commerce
Raymond Nutall contends that the district court erred in
submitting the interstate commerce instruction to the jury because
there was insufficient evidence to prove the required effect. In
particular, Raymond Nutall argues that the trial court should have
required a substantial rather than a de minimis effect on
interstate commerce. The district court's instruction requiring a
7
de minimis effect was not an abuse of discretion. The Appellant's
argument is foreclosed by Robinson, 119 F.3d at 1215 (holding that,
in light of the aggregation principle, “the particular conduct at
issue in any given case need not have a substantial effect upon
interstate commerce.”).
B. Gary Patrick Nutall
1. Severance and Fair Trial
Gary Nutall contends that the district court erred in refusing
to sever the trial. Specifically, he argues that the district
court's denial of severance compromised his rights under the Sixth
Amendment to call witnesses in his defense. We review the district
court's denial of a motion for severance for abuse of discretion.
See Zafiro v. United States, 506 U.S. 534, 539 (1993). The
Appellant must demonstrate specific compelling prejudice. See
United States v. Capote-Capote, 946 F.2d 1100, 1104 (5th Cir.
1991). A showing of prejudice must be balanced against the
public's interest in efficient judicial administration. See United
States v. Lindell, 881 F.2d 1313, 1319 (5th Cir. 1989).
In order to establish a prima facie case warranting severance
for the purpose of introducing exculpatory evidence of a co-
defendant, the defendant must show: (1) a bona fide need for the
testimony; (2) the substance of the testimony; (3) its exculpatory
nature and effect; and (4) that the co-defendant would in fact
testify if the severance were granted. See United States v.
Broussard, 80 F.3d 1025, 1037 (5th Cir. 1996).
After a careful review of Gary Nutall's motion to sever and
8
Raymond Nutall's affidavit stating that he would testify, we do not
find that the district court abused its discretion in denying
severance. Raymond Nutall's proposed testimony stated:
If called, I would testify that my brother Gary had
nothing to do with the robberies in this case. I know
this because another person told me that he had committed
those robberies and also told me that Gary was not
involved. If called to testify, I will name that person.
The substance of Raymond Nutall's proposed testimony provided, at
best, “unsupported, self-serving statements that were only
tangentially exculpatory.” United States v. Daly, 756 F.2d 1076,
1080 (5th Cir. 1985). We find no abuse of discretion in denying
Gary Nutall's severance motion.
2. Right to Confrontation
Gary Nutall contends that his Sixth Amendment Right to
Confrontation was violated when the confession of his co-
defendant's brother was introduced at their joint trial. Raymond
Nutall, in a written statement, confessed to robbery and conspiracy
and incriminated his brother, Gary Nutall. Because the confession
was inadmissible against Gary Nutall, the Government blacked out
Gary Nutall’s name with a dark marker. At trial, however, the
Government introduced Raymond Nutall’s confession which included a
reference to Gary Nutall’s home address. Gary Nutall contends the
reference to his address was “the functional equivalent of naming”
him. This Court reviews a constitutional challenge de novo. See
United States v. Asibor, 109 F.3d 1023, 1037 (5th Cir.), cert.
denied, 118 S.Ct. 254 (1997). Bruton issues, failures to remove
references to co-defendants, are reviewed for abuse of discretion.
9
See United States v. Fletcher, 121 F.3d 187, 197 (5th Cir. 1997).
The Confrontation Clause of the Sixth Amendment guarantees the
right of a criminal defendant “to be confronted with the witnesses
against him.” In United States v. Bruton, 391 U.S. 123 (1968),
the Supreme Court held that a defendant is deprived of his rights
under the Confrontation Clause when his non-testifying co-
defendant’s confession naming him as a participant in the crime is
introduced at their joint trial, even if the jury is instructed to
consider that confession only against the co-defendant. In
Richardson v. Marsh, 481 U.S. 200, 211 (1987), the Court considered
the application of Bruton to a redacted confession, holding that a
redacted confession of a non-testifying co-defendant is admissible
when the confession omits the defendant’s name and any other
“reference to his or her existence.” Bruton’s protective rule,
however, applies to a non-testifying co-defendant’s confession when
the redacted confession replaces the defendant’s name with an
obvious deletion. See Gray v. Maryland, 118 S.Ct. 1151 (1998).
The Government acknowledges, and we agree, that the confession
admitted in this case, having been redacted by blacking out Gary
Nutall’s name with a marker but leaving the reference to the
address, is exactly the type of evidence found unconstitutional by
Gray. The admission of the confession was error.
Gray, however, did not undercut this Circuit’s holding that
Bruton error may be considered harmless when, disregarding the co-
defendant’s confession, there is otherwise ample evidence against
a defendant. See United States v. Kelly, 973 F.2d 1145, 1150 (5th
10
Cir. 1992) (recognizing harmless error standard). “[B]efore a
federal constitutional error can be held harmless, the court must
be able to declare a belief that it was harmless beyond a
reasonable doubt.” Chapman v. California, 386 U.S. 18, 24 (1967).
We therefore must determine whether, absent the Bruton-tainted
confessions, there was a reasonable probability that the defendant
would have been acquitted. See United States v. Lewis, 786 F.2d
1278, 1286 n.11 (5th Cir. 1986).
After our review of the record, we find, beyond a reasonable
doubt, that the evidence was harmless; that is, that it did not
prejudicially contribute to the convictions. See Chapman, 386 U.S.
at 24. Gary Nutall provided his own confession in which he
confessed to committing the December robbery and serving as the
getaway driver in the February robbery. Further, he admitted
casing various check cashing businesses in San Antonio. The
Government showed that, in the days following the December robbery,
Gary Nutall went on a large spending spree, purchasing an
automobile and clothing. The admission of the redacted
confessions, while error, was harmless error.
3. Admissibility of Evidence and Testimony
Gary Nutall contends that the district court erroneously
admitted irrelevant evidence of a pistol that unfairly linked him
to the December robbery. In addition, he contends that the
district court allowed inadmissible hearsay evidence and asserts
that the admission of the irrelevant and hearsay evidence was
prejudicial and requires reversal.
11
a. The Pistol
Gary Nutall argues that the pistol was not relevant and the
trial court should have excluded it under Fed. R. Evid. 401. All
evidence offered at trial is subject to a threshold test of
“relevancy.” “‘Relevant evidence’ means evidence having any
tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable
than it would be without the evidence.” Fed. R. Evid. 401. “All
relevant evidence is admissible...[e]vidence which is not relevant
is not admissible.” Fed. R. Evid. 402.
In reviewing the district court’s rulings on matters of
relevancy, this Court is guided by the principle that district
courts have wide discretion in determining relevancy under Rule
401. The district court’s decision will not be disturbed absent a
substantial abuse of discretion. See United States v. Hays, 872
F.2d 582, 587 (5th Cir. 1989). The review of erroneous evidentiary
rulings in criminal trials is necessarily heightened. Ultimately,
we examine “what effect the error had or reasonably may be taken to
have had upon the jury’s decision.” Hays, 872 F.2d at 587 (citing
Kotteakos v. United States, 328 U.S. 750, 764 (1946)).
After reviewing the relevance of the evidence, we conclude
that the district court did not abuse its discretion. Gary Nutall
Nutall was charged, inter alia, with two counts of using and
carrying a firearm during and in relation to a crime of violence,
18 U.S.C. § 924(c). In Gary Nutall’s confession, he stated that he
used a semi-automatic weapon in the robbery at Ace America.
12
Raymond Nutall’s confession also referenced that a weapon was used
in the robbery. At trial, the Government introduced a semi-
automatic weapon. This weapon fit the description of the weapon
described in Gary Nutall’s confession. Further, Charles Milburn,
the manager of the Ace store robbed in December, testified that the
weapon admitted at trial resembled the weapon used in the robbery.
The weapon introduced at trial was relevant to the crimes at issue
and was properly admitted.
b. Hearsay Testimony
Gary Nutall contends that the district court erroneously
admitted hearsay testimony. The Government concedes that the
particular testimony was hearsay, but contends that its admission
was harmless and does not require reversal. The Government bears
the burden of showing that the error was not prejudicial. See
United States v. Olano, 507 U.S. 725, 734 (1993).
Gary Nutall’s confession stated that he borrowed a semi-
automatic pistol from an individual named “Bobby.” Raymond
Nutall's confession stated that the pistol used in the robbery had
been obtained from an individual named “Bobby Sanders” or “Bobby
Jr.” At trial, the Government introduced what it claimed was the
pistol mentioned in the confessions. FBI Agent Henry testified
that he received the gun from a man named “Robert Taylor.” The
Government then elicited testimony that Robert Taylor’s nickname
was “Bobby Jr.” It is undisputed that this testimony was hearsay.
Gary Nutall argues that Agent Henry’s hearsay testimony was
the only evidence that Robert Taylor, the owner of the pistol
13
introduced at trial, was also “Bobby Jr.,” the owner of the pistol
used in the robberies. Thus, he argues, this evidence had the
effect of corroborating his confession.
We conclude that the hearsay evidence, while erroneously
admitted, considered in light of the other overwhelming evidence of
guilt, did not have a prejudicial effect.
III. CONCLUSION
For the above reasons, the Appellants’ convictions are
AFFIRMED.
ENDRECORD
14
DeMOSS, Circuit Judge, specially concurring:
Because our Court divided evenly in its en banc reconsidera-
tion of whether the Hobbs Act, 18 U.S.C. § 1951, can be
constitutionally applied to the robbery of a local retail store in
United States v. Hickman, ___ F.3d ____ (5th Cir. 1999), I
recognize that the holding of a panel of this Court in United
States v. Robinson, 119 F.3d 1205 (5th Cir. 1997), is still binding
precedent and I concur in the judgment of affirmance in this case.
However, for the reasons stated by Judge Higginbotham in his
dissent in Hickman and for the reasons which I have stated
previously, see United States v. Hebert, 131 F.3d 514 (5th Cir.
1997) (DeMoss, J., dissenting in part); United States v. Miles, 122
F.3d 235 (5th Cir. 1997) (DeMoss, J., specially concurring), I
remain convinced that by prosecuting local robberies on the
theories that (1) the effect of local robberies can be aggregated
for purposes of determining an effect on interstate commerce; (2)
the taking of cash from a local retail store causes a "depletion of
assets" which reduces the ability of that store to participate in
interstate commerce; and (3) only a "de minimis effect" on
interstate commerce is needed to sustain the applicability of the
Hobbs Act to these local robberies, the Department of Justice is
stretching the plain language of the Hobbs Act well beyond the
bounds contemplated by Congress.
The defendants in this case were put under surveillance by the
San Antonio Police Department, were investigated and arrested by
the San Antonio Police Department, were charged with violations
under Texas law, and had their residence searched with a warrant
issued by a state judge. In statements given to San Antonio Police
Department detectives, the defendants essentially confessed to
committing robberies under Texas law. But for the interposition of
the federal prosecutions in this case, these individuals would have
been charged, tried, and convicted of violations of the Texas
robbery statute.
By its express language, the Hobbs Act makes criminal the
conduct of "obstructing, delaying, or affecting commerce between a
point in one state and a point in another state by robbery." There
is nothing in the language of the Hobbs Act nor its legislative
history that supports a contention that it was intended to make a
federal crime out of local robberies that in no way affect that
intercourse.
Under the Supreme Court’s decision in United States v. Lopez,
514 U.S. 549, 566-68 (1995), the federal courts are charged with
the task of drawing a line between criminal conduct which is "truly
local" and criminal conduct which is "truly national" in effect.
In my view, it is impossible to reconcile the theories upon which
the Department of Justice contends that the Hobbs Act should be
applied to local robberies with the teaching and analysis set forth
by the Supreme Court in Lopez. Sooner or later the Supreme Court
must either back down from the principles enunciated in Lopez or
rule that the Hobbs Act cannot be constitutionally applied to local
robberies. I urge the defendants in this case to seek a writ of
certiorari on this point.
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