United States v. Lavell Bone

433 F. App'x 831
CourtCourt of Appeals for the Eleventh Circuit
DecidedJuly 11, 2011
Docket10-12054
StatusUnpublished
Cited by5 cases

This text of 433 F. App'x 831 (United States v. Lavell Bone) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Lavell Bone, 433 F. App'x 831 (11th Cir. 2011).

Opinion

PER CURIAM:

Lavell Bone appeals his convictions and 461-month total sentence for (1) bank robbery, 18 U.S.C. § 2113; (2) robbery interfering with commerce in violation of the Hobbs Act, 18 U.S.C. § 1951; and (3) two counts of brandishing a firearm during a crime of violence, 18 U.S.C. § 924(c)(l)(A)(ii). 1 No reversible error has been shown; we affirm.

Bone first challenges the district court’s denial of his motion to suppress. In considering the district court’s denial of a motion to suppress, we review fact determinations for clear error and the application of law to the facts de novo. United States v. Boyce, 351 F.3d 1102, 1105 (11th Cir.2003). And we construe all facts in the light most favorable to the prevailing party. Id.

Bone’s aunt (Tamatha), allowed law enforcement officers to search the spare bedroom that Bone sometimes used in her apartment. In this room, officers discovered, among other things, the keys belonging to the bank that had been robbed. Bone contends that he was entitled to some expectation of privacy in the room he used at his aunt’s apartment and, thus, the officers needed his consent to search the room. Bone bears the burden of demonstrating a legitimate expectation of privacy in the room. United States v. Harris, 526 F.3d 1334, 1338 (11th Cir.2008).

A search is permissible if an officer obtains the voluntary consent of either the person whose property is searched or of a third party who possesses common authority over the premises. Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 2797, 111 L.Ed.2d 148 (1990). A person assumes the risk that a co-habitant might permit a common area to be searched. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 993 n. 7, 39 L.Ed.2d 242 (1974).

Here, Bone produced no evidence that he enjoyed the authority to exclude Tamatha from entering the spare bedroom. Instead, the evidence showed that (1) only Tamatha’s name was on the lease; (2) only Tamatha paid rent; (3) Bone stayed at the apartment sporadically; and (4) Tamatha and Bone both stored items in the spare bedroom where Bone sometimes stayed. On these facts, we conclude that Tamatha enjoyed common authority over the bedroom and had authority to give consent to the officers to search the bedroom. The district court committed no error in denying the motion to suppress.

Next, Bone argues that the district court abused its discretion by denying his motion to sever the trial of the bank robbery from the Hobbs Act robbery. He contends that the failure to sever preju *834 diced him because the jury likely had difficulty separating the evidence about the two distinct robberies.

Rule 14 of the Federal Rules of Criminal Procedure permits appropriate relief from joinder “[i]f the joinder of offenses ... in an indictment ... appears to prejudice a defendant.” But we “will not reverse the denial of a severance motion absent a clear abuse of discretion resulting in compelling prejudice against which the district court could offer no protection.” United States v. Walser, 3 F.3d 380, 385 (11th Cir.1993). To assess compelling prejudice, we look at whether, under the circumstances of a particular case, “it is within the capacity of jurors to follow a court’s limiting instructions and appraise the independent evidence against a defendant solely on that defendant’s own acts, statements, and conduct in relation to the allegations contained in the indictment and render a fair and impartial verdict.” Id. at 386-87.

Bone fails to carry his burden to show that severance was proper. The government presented the evidence of each robbery in an organized and sequential manner, which minimized the opportunity for juror confusion over which evidence applied to which robbery. The district court expressly instructed the jury to consider the evidence for each count separately; and Bone provides no evidence to rebut the general presumption that the jury was capable of following the court’s instructions. Id. at 387. Bone presents only conclusory allegations of prejudice, which do not meet Bone’s “heavy burden.” Id. at 386.

Bone argues that the district court erred in denying his motion for judgment of acquittal on the Hobbs Act robbery because the government failed to prove an effect on interstate commerce. We review de novo the sufficiency of the evidence, viewing the evidence in the light most favorable to the government and drawing all reasonable inferences and credibility choices in favor of the jury’s verdict. United States v. Rodriguez, 218 F.3d 1243, 1244 (11th Cir.2000).

The Hobbs Act criminalizes obstructing, delaying, or affecting “commerce or the movement of any article or commodity in commerce, by,” among other things, robbery. 18 U.S.C. § 1951(a). The Hobbs Act’s jurisdictional language manifests “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, 80 S.Ct. 270, 272, 4 L.Ed.2d 252 (1960). So, the government need only establish a minimal effect on interstate commerce to support a violation of the Hobbs Act; and a “mere ‘depletion of assets’ of a business engaged in interstate commerce” meets the jurisdictional requirement. Rodriguez, 218 F.3d at 1244.

Here, the government showed that the Mrs. Winner’s store that Bone robbed was a corporate store with corporate headquarters located in Florida. The store purchased restaurant items from vendors in many different states. Bone escaped with $524.46 from the robbery and the store had to close for two hours, resulting in an additional loss of $180. The total loss represented 0.18 percent of the daily gross receipts from all Mrs. Winner’s stores. From these facts, a jury could reasonably find that Bone’s robbery obstructed, delayed, or affected interstate commerce. See United States v. Gray,

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Bluebook (online)
433 F. App'x 831, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-lavell-bone-ca11-2011.