United States Court of Appeals For the First Circuit
No. 00-1940
UNITED STATES OF AMERICA,
Appellee,
v.
KIEU MINH NGUYEN,
Defendant, Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Selya, Stahl, and Lynch, Circuit Judges.
Peter E. Rodway, Rodway & Horodyski, James R. Van Camp, and Van Camp, Hayes & Meacham, P.A., on brief for appellant. Margaret D. McGaughey, Assistant United States Attorney, and Jay P. McCloskey, United States Attorney, on brief for appellee. April 17, 2001
LYNCH, Circuit Judge. Kieu Minh Nguyen was convicted
of violating the Hobbs Act, 18 U.S.C. § 1951, by conspiring to
obstruct commerce by means of robbery, as well as by aiding
and abetting that crime.1 He appeals his conviction and
sentence of 109 months imprisonment. We affirm.
I. Background
We review the evidence in the light most favorable
to the verdict.
Between February and May 1998, Nguyen worked for
Nail Time, a nail salon in Portland, Maine. While employed
there, he lived at the home of the shop's owner, Monica Tran.
Nail Time was strictly a cash business with gross
receipts of $800 to $1,000 a day. The shop was small, such
that at the end of every workday employees could see Monica
put the day's receipts into a purse and walk home with it.
Moreover, because Nguyen was living at Monica's apartment, he
1 Nguyen was acquitted on a second count charging that he had used and carried a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c).
-2- was able to see Monica store the purse in a closet when she
arrived home.
Eventually, personal problems developed between
Monica and Nguyen, resulting in the termination of his
employment at Nail Time. Nguyen then moved to North Carolina.
In June 1998, Nguyen had a group of people stay at
his home for several nights; among them were four individuals,
named Cong, Thong, Nam, and Quyen. Nguyen told the group
about Monica and how she kept her business earnings in a black
bag stored in her apartment closet. Nguyen recruited the four
to go to Maine and steal the contents of the bag. He had
someone give the group directions to Monica's apartment and
gave Nam a key to the front door of the apartment building.
Nguyen also gave the group $300 to cover traveling expenses.
During this planning period, Nguyen observed Cong with a
handgun.
On June 23, 1998, the four men sent by Nguyen burst
into Monica's apartment; one of them, Cong, was armed. The
four bound and gagged Monica's two young daughters, who were
alone inside, and ransacked the apartment in search of the
black bag containing the earnings of Nail Time. Unable to
-3- find the bag, the robbers left with personal belongings -- a
stereo and some jewelry. The four returned to North Carolina
within several days of the robbery and stayed overnight with
Nguyen.
II. Sufficiency of the Evidence
Nguyen argues that the evidence at trial was
insufficient to support a Hobbs Act conviction in two
respects. First, he argues that there was insufficient
evidence of any interstate commerce nexus. Second, he argues
that there was insufficient evidence that he conspired to
commit robbery, as opposed to the lesser offense of theft.
A. Commerce
The Hobbs Act prohibits robbery or conspiracy to rob
where such crime "in any way or degree, obstructs, delays, or
affects commerce." 18 U.S.C. § 1951(a). Nguyen concedes, as
he must, that if a robbery even minimally depletes the assets
of an entity doing business in interstate commerce, like Nail
Time,2 then that suffices to meet the Hobbs Act's interstate
commerce element. See, e.g., United States v. DiGregorio, 605
2 The evidence showed that Nail Time ordered a substantial proportion of its products from out of state.
-4- F.2d 1184, 1190-91 (1st Cir. 1979). But he makes two attempts
to distinguish that principle from this case.
First, he argues that, although the conspirators had
hoped to steal the earnings of Nail Time stored in Monica's
purse, the only articles they actually stole were a stereo and
jewelry. But this distinction is of no avail in the context
of a conspiracy charge. All that matters is that Nguyen
entered a conspiracy whose objective was to steal the assets
of an entity in interstate commerce. That the conspiracy
failed to accomplish such objective is irrelevant. E.g.,
United States v. DiCarlantonio, 870 F.2d 1058, 1061 (6th Cir.
1989); United States v. Brantley, 777 F.2d 159, 162 (4th Cir.
1985).
Second, Nguyen argues that the conspirators did not
necessarily know whether the money in the black bag they
planned to steal constituted Nail Time's operating cash (used
by the business to purchase items in interstate commerce) or
merely Monica's take-home profits. But the interstate
commerce element does not turn on such accounting niceties.
Cf., e.g., United States v. Devin, 918 F.2d 280, 293-94 (1st
Cir. 1990) (considering it inconsequential, in Hobbs Act
-5- extortion case, that extorted funds came from business owner's
personal funds rather than from corporate funds, because jury
could infer that depletion of former ultimately effects a
depletion of latter) (citing DiGregorio, 605 F.2d at 1191-92).
The evidence need only support a "realistic probability" that
the contemplated robbery would have "some slight impact" on
interstate commerce. Id. at 293. Such probability is easily
established here, as the evidence clearly shows that the
conspirators planned to steal the earnings of a business in
interstate commerce. Proof beyond that, e.g., that the
precise funds stolen were certain to be used in future
business purchases, is not required.
B. Robbery
As defined in the Hobbs Act, "[t]he term 'robbery'
means the unlawful taking or obtaining of personal property .
. . in the presence of another, against his will, by means of
actual or threatened force, or violence, or fear of injury."
18 U.S.C. § 1951(b)(1). Nguyen does not contest that his co-
conspirators committed robbery. Rather, he argues that it was
not foreseeable to him that they would commit robbery as
opposed to simple theft. But the evidence was not
-6- insufficient on this point. Nguyen knowingly dispatched his
co-conspirators to break into Monica's home and steal her
black bag. He knew that at least one member of this
unwholesome crew carried a gun. He also knew, from living
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United States Court of Appeals For the First Circuit
No. 00-1940
UNITED STATES OF AMERICA,
Appellee,
v.
KIEU MINH NGUYEN,
Defendant, Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Selya, Stahl, and Lynch, Circuit Judges.
Peter E. Rodway, Rodway & Horodyski, James R. Van Camp, and Van Camp, Hayes & Meacham, P.A., on brief for appellant. Margaret D. McGaughey, Assistant United States Attorney, and Jay P. McCloskey, United States Attorney, on brief for appellee. April 17, 2001
LYNCH, Circuit Judge. Kieu Minh Nguyen was convicted
of violating the Hobbs Act, 18 U.S.C. § 1951, by conspiring to
obstruct commerce by means of robbery, as well as by aiding
and abetting that crime.1 He appeals his conviction and
sentence of 109 months imprisonment. We affirm.
I. Background
We review the evidence in the light most favorable
to the verdict.
Between February and May 1998, Nguyen worked for
Nail Time, a nail salon in Portland, Maine. While employed
there, he lived at the home of the shop's owner, Monica Tran.
Nail Time was strictly a cash business with gross
receipts of $800 to $1,000 a day. The shop was small, such
that at the end of every workday employees could see Monica
put the day's receipts into a purse and walk home with it.
Moreover, because Nguyen was living at Monica's apartment, he
1 Nguyen was acquitted on a second count charging that he had used and carried a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c).
-2- was able to see Monica store the purse in a closet when she
arrived home.
Eventually, personal problems developed between
Monica and Nguyen, resulting in the termination of his
employment at Nail Time. Nguyen then moved to North Carolina.
In June 1998, Nguyen had a group of people stay at
his home for several nights; among them were four individuals,
named Cong, Thong, Nam, and Quyen. Nguyen told the group
about Monica and how she kept her business earnings in a black
bag stored in her apartment closet. Nguyen recruited the four
to go to Maine and steal the contents of the bag. He had
someone give the group directions to Monica's apartment and
gave Nam a key to the front door of the apartment building.
Nguyen also gave the group $300 to cover traveling expenses.
During this planning period, Nguyen observed Cong with a
handgun.
On June 23, 1998, the four men sent by Nguyen burst
into Monica's apartment; one of them, Cong, was armed. The
four bound and gagged Monica's two young daughters, who were
alone inside, and ransacked the apartment in search of the
black bag containing the earnings of Nail Time. Unable to
-3- find the bag, the robbers left with personal belongings -- a
stereo and some jewelry. The four returned to North Carolina
within several days of the robbery and stayed overnight with
Nguyen.
II. Sufficiency of the Evidence
Nguyen argues that the evidence at trial was
insufficient to support a Hobbs Act conviction in two
respects. First, he argues that there was insufficient
evidence of any interstate commerce nexus. Second, he argues
that there was insufficient evidence that he conspired to
commit robbery, as opposed to the lesser offense of theft.
A. Commerce
The Hobbs Act prohibits robbery or conspiracy to rob
where such crime "in any way or degree, obstructs, delays, or
affects commerce." 18 U.S.C. § 1951(a). Nguyen concedes, as
he must, that if a robbery even minimally depletes the assets
of an entity doing business in interstate commerce, like Nail
Time,2 then that suffices to meet the Hobbs Act's interstate
commerce element. See, e.g., United States v. DiGregorio, 605
2 The evidence showed that Nail Time ordered a substantial proportion of its products from out of state.
-4- F.2d 1184, 1190-91 (1st Cir. 1979). But he makes two attempts
to distinguish that principle from this case.
First, he argues that, although the conspirators had
hoped to steal the earnings of Nail Time stored in Monica's
purse, the only articles they actually stole were a stereo and
jewelry. But this distinction is of no avail in the context
of a conspiracy charge. All that matters is that Nguyen
entered a conspiracy whose objective was to steal the assets
of an entity in interstate commerce. That the conspiracy
failed to accomplish such objective is irrelevant. E.g.,
United States v. DiCarlantonio, 870 F.2d 1058, 1061 (6th Cir.
1989); United States v. Brantley, 777 F.2d 159, 162 (4th Cir.
1985).
Second, Nguyen argues that the conspirators did not
necessarily know whether the money in the black bag they
planned to steal constituted Nail Time's operating cash (used
by the business to purchase items in interstate commerce) or
merely Monica's take-home profits. But the interstate
commerce element does not turn on such accounting niceties.
Cf., e.g., United States v. Devin, 918 F.2d 280, 293-94 (1st
Cir. 1990) (considering it inconsequential, in Hobbs Act
-5- extortion case, that extorted funds came from business owner's
personal funds rather than from corporate funds, because jury
could infer that depletion of former ultimately effects a
depletion of latter) (citing DiGregorio, 605 F.2d at 1191-92).
The evidence need only support a "realistic probability" that
the contemplated robbery would have "some slight impact" on
interstate commerce. Id. at 293. Such probability is easily
established here, as the evidence clearly shows that the
conspirators planned to steal the earnings of a business in
interstate commerce. Proof beyond that, e.g., that the
precise funds stolen were certain to be used in future
business purchases, is not required.
B. Robbery
As defined in the Hobbs Act, "[t]he term 'robbery'
means the unlawful taking or obtaining of personal property .
. . in the presence of another, against his will, by means of
actual or threatened force, or violence, or fear of injury."
18 U.S.C. § 1951(b)(1). Nguyen does not contest that his co-
conspirators committed robbery. Rather, he argues that it was
not foreseeable to him that they would commit robbery as
opposed to simple theft. But the evidence was not
-6- insufficient on this point. Nguyen knowingly dispatched his
co-conspirators to break into Monica's home and steal her
black bag. He knew that at least one member of this
unwholesome crew carried a gun. He also knew, from living
with Monica, that her apartment was frequently occupied by
family members and house guests. Indeed, Monica specifically
testified that she rarely would leave her black bag at the
apartment when it was not occupied; rather, she would only
leave it at home if her mother was there to look after it.
Further, there was evidence that one of Nguyen's motives in
forming the conspiracy was to follow through on a grudge he
held against Monica's brother, Kevin, who lived in the
apartment: Nguyen stated, in reference to the planned crime,
that Kevin would "get what is coming to him";3 and the robbers
specifically asked for Kevin on entering the apartment. On
these facts, a jury could easily find that robbery was a
foreseeable outcome of the conspiracy.
III. Sentencing
3 Nguyen's suggestion that this statement was intended to mean only that "Kevin's life could be beset by bad karma as a result of some evil deed attributed to him" is inventive, but is hardly the only conclusion a rational jury could reach.
-7- Nguyen also appeals his sentence, specifically the
five-level increase the district court imposed under U.S.S.G.
§ 2B3.1(b)(2)(C) on the ground that a firearm was possessed
during the commission of the robbery. He appeals on two
grounds.
First, Nguyen argues that the court committed clear
error in finding that Nguyen should have foreseen that a co-
conspirator would carry a firearm in the course of the
robbery. See United States v. Carrillo-Figueroa, 34 F.3d 33,
42 (1st Cir. 1994) (applying clear error review to similar
claim). The district court erred, Nguyen contends, by relying
on testimony struck during trial for lack of foundation.
But this contention is wholly inaccurate. The
district court relied on the testimony of Cong, who testified
both that Nguyen saw him with a firearm while he was at
Nguyen's house as the robbery was being planned, and also that
he thought Nguyen knew that he would take the firearm with him
to use in the robbery. Only the latter testimony was struck
for lack of foundation during trial, and it was only the
former testimony that the district court relied on in imposing
the firearm enhancement. In ruling on the issue, the court
-8- noted that all that mattered was whether Nguyen should have
foreseen (rather than whether he knew) that a firearm would be
possessed during the offense,4 and it concluded that:
the testimony of Cong was clear that he saw, he, the defendant, saw Cong with the weapon in advance and therefore . . . it was certainly foreseeable that Cong would be in possession of the firearm during the offense.
Thus the district court did not commit the error alleged by
Second, Nguyen argues that under Apprendi v. New
Jersey, 530 U.S. 466 (2000), the facts underlying a potential
sentencing enhancement should have been pled in the
indictment. We decline to rule on whether Apprendi requires
such facts to be pled in the indictment, for Apprendi does not
apply here in any event, as Nguyen's sentence did not exceed
the 20-year statutory maximum. See United States v. Robinson,
241 F.3d 115, 120-22 (1st Cir. 2001) (Apprendi applies only
4 U.S.S.G. § 2B3.1(b)(2)(C) provides for a five-level enhancement "if a firearm was brandished, displayed, or possessed" during the offense. U.S.S.G. § 1B1.3(a)(1)(B) further provides that in a conspiracy case, specific offense characteristics such as this are determined not only on the basis of the defendant's own conduct, but also on the basis of "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity."
-9- where defendant's actual sentence exceeds default statutory
maximum).
Affirmed.
-10-