United States v. Selena Turner (99-1640) Edward James (99-1762) Kevin Larkins (99-2013)

272 F.3d 380, 2001 U.S. App. LEXIS 25248, 2001 WL 1502877
CourtCourt of Appeals for the Sixth Circuit
DecidedNovember 28, 2001
Docket99-1640, 99-1762, 99-2013
StatusPublished
Cited by48 cases

This text of 272 F.3d 380 (United States v. Selena Turner (99-1640) Edward James (99-1762) Kevin Larkins (99-2013)) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth 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. Selena Turner (99-1640) Edward James (99-1762) Kevin Larkins (99-2013), 272 F.3d 380, 2001 U.S. App. LEXIS 25248, 2001 WL 1502877 (6th Cir. 2001).

Opinions

SILER, J., delivered the opinion of the court, in which CLAY, J., joined. MOORE, J. (p. 390), delivered a separate concurring opinion.

OPINION

SILER, Circuit Judge.

Defendants Selena Turner and Kevin Larkins appeal their convictions after trial on conspiracy to commit robbery in violation of the Hobbs Act, 18 U.S.C. § 1951. Edward James appeals his § 1951 conviction and sentence following his guilty plea to the conspiracy charge. For the reasons stated hereafter, we REVERSE Turner’s and Larkins’s convictions and AFFIRM James’s conviction and sentence.

I. BACKGROUND

This case arises from a conspiracy by three Detroit police officers, James, Lar-kins, and Vernon Gentry, and a civilian, Turner, to rob Sterling Talley. Talley, Turner’s former boyfriend and housemate, conducted an illegal lottery in which approximately three runners he employed took bets on the winning numbers for the Ohio and Michigan lotteries. The runners would collect bets from bars, automobile plants and other places of employment in and around Detroit. Individual bettors could phone bets to Talley’s home and runners transported or faxed bets to his home. Talley paid individuals who had picked the winning Ohio and Michigan lottery numbers at slightly higher odds than the states. Talley’s business did not involve the use of legitimate lottery tickets.

Talley had previously been convicted of tax evasion because he had not reported his illegal gambling proceeds as income. Notably, however, there is no indication that he has been prosecuted for conducting an illegal gambling business in violation of 18 U.S.C. § 1955.1

[383]*383Turner lived with Talley for awhile. After breaking up with Talley and moving out of his home, Turner believed that he owed her money and devised a plan to have her cousin, James, rob him. Turner informed James that Talley kept large amounts of money in his house. The defendants estimated that Talley had between one and two million dollars in his home. James recruited Gentry to assist him.

After an aborted attempt to rob Talley on the street, Gentry and James came up with a plan to rob his home. They recruited Larkins to assist them. They also sought the assistance of Darwin Roache, another Detroit police officer who feigned interest in joining the conspiracy, but agreed to work undercover. Roache recorded several conversations in which he and the other officers discussed how the robbery would be carried out. The plan called for the officers to pose as federal agents and stage a raid of Talley’s house, restrain those inside, and take the money.

On the morning the robbery was to be carried out, the FBI and Detroit police officers arrested Larkins, James, Gentry and Turner and executed search warrants. The officers seized police clothing, duct tape, cable ties, a stolen pistol and other items that were to be used to carry out the robbery. The FBI also executed a search warrant of Talley’s home and seized more than $400,000 in cash — the proceeds from Talley’s illegal gambling activity.

The four were indicted for conspiracy to commit robbery in violation of the Hobbs Act and the officers were charged with using or carrying a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1). James and Gentry entered guilty pleas. Larkins stood trial by himself in 1998. The trial resulted in an acquittal on the firearm charge and a hung jury and mistrial on the Hobbs Act conspiracy charge. In 1999, Larkins and Turner were tried together and found guilty on the conspiracy charge.

The district court sentenced James to a 108 month term of imprisonment. Larkins and Turner were sentenced to 121 month terms of imprisonment. Gentry’s conviction is not before this court.

II. DISCUSSION

Turner and Larkins argue that the district court erred in denying their Rule 29 motions for judgments of acquittal because the government did not establish that the conspiracy could have affected interstate commerce. James argues that his guilty plea was invalid because the government failed to produce an adequate factual basis upon which the district court could conclude it had “jurisdiction” under the Hobbs Act.

A. Standard of Review

“A Rule 29 motion is a challenge to the sufficiency of the evidence.” United States v. Jones, 102 F.3d 804, 807 (6th Cir.1996). This court reviews the sufficiency of the evidence supporting the convictions of Larkins and Turner “by determining ‘whether after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” United States v. Wang, 222 F.Sd 234, 237 (6th Cir.2000) (quoting United States v. Brown, 959 F.2d 63, 67 [384]*384(6th Cir.1992), in turn quoting Jackson v. Virginia) 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

This court explained the standard of review applicable to James’s appeal in United States v. Tunning, 69 F.3d 107 (6th Cir.1995), as follows:

In McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), the Supreme Court adopted a rule of strict compliance with the procedures of Rule 11. This rule was modified in 1983 with the adoption of Rule 11(h), which provides that variations from the requirements of Rule 11 are excusable so long as they do not affect the “substantial rights” of the defendant. However, this “harmless error” analysis does not apply to appellate review of the sufficiency of the factual basis supporting the guilty plea. “ ‘[WJhile the exact method of producing a factual basis on the record is subject to a flexible standard of review, the need to have some factual basis will continue to be a rule subject to no exceptions.’ ”

Id. at 111 (quoting United States v. Goldberg, 862 F.2d 101, 106 (6th Cir.1988), in turn quoting United States v. Fountain, 777 F.2d 351, 357 (7th Cir.1985), cert. denied, 475 U.S. 1029, 106 S.Ct. 1232, 89 L.Ed.2d 341 (1986)).

B. Sufficiency of the Evidence

The Hobbs Act, 18 U.S.C. § 1951, provides, in relevant part:

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272 F.3d 380, 2001 U.S. App. LEXIS 25248, 2001 WL 1502877, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-selena-turner-99-1640-edward-james-99-1762-kevin-ca6-2001.