IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-41110
UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus
KENNETH A. TATUM Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of Texas (99-CR-164)
December 14, 2001
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:*
Kenneth A. Tatum was convicted of murdering two men with a
firearm in connection with two armed robberies. He brings numerous
challenges to his conviction, including a Commerce Clause-based
challenge to federal jurisdiction over these assertedly local
crimes. We affirm.
I
On May 26, 1999, a federal grand jury indicted Tatum on two
counts. Count One alleges the armed bank robbery of the First State
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Bank in Overton, Texas, resulting in death in violation of 18
U.S.C. § 2113(a), (d), and (e). Count Two alleges that Tatum used
or carried a firearm during and in relation to a crime of
violence—the robbery of Ely and and attempted robbery of Dusek’s
Auto Sales. Jury selection began on July 31, 2000 in Tatum’s case,
and trial testimony began on August 21, 2000. The jury found him
guilty on both counts, and on September 7, 2000 he was sentenced to
life in prison without the possibility of release. Tatum filed a
timely notice of appeal.
II
- 1 -
Tatum first argues that his conviction for attempted robbery
resulting in death should be overturned because the government
failed to prove that the deposits of the First State Bank of
Overton were insured by the Federal Deposit Insurance Corporation
(FDIC) on November 4, 1998. In evaluating the sufficiency of the
evidence, this court asks whether a reasonable trier of fact could
have found that the evidence established the essential elements of
the crime beyond a reasonable doubt.1 We consider the evidence in
the light most favorable to the verdict, drawing all reasonable
inferences in favor of the verdict.2 We review jury verdicts with
great deference and will not supplant the jury's determination of
1 United States v. Cathey, 259 F.3d 365, 368 (5th Cir. 2001). 2 Id.
2 credibility with that of our own.3
The federal bank robbery statute under which Tatum was
convicted defines a "bank" as one whose deposits are insured by the
FDIC.4 Proof that the institution meets this definition of “bank”
at the time of the robbery is an essential element of the offense
that must be proven beyond a reasonable doubt to establish federal
jurisdiction.5
At trial, the bank president testified that the First State
Bank is insured by the FDIC and that the bank pays quarterly
assessments to the FDIC. The government also introduced into
evidence a copy of a certificate that indicated that the bank is
insured by the FDIC, as well as photos of the interior of the bank
showing an FDIC notice on display in the bank. Tatum argues that
this evidence is insufficient to prove the bank’s insured status at
the time of the robbery. The evidence is sufficient under our
precedents, even without specific testimony that the bank was
federally insured at the time of the robbery.6
- 2 -
Tatum also argues that even if there was sufficient proof of
3 United States v. McCauley, 253 F.3d 815, 819 (5th Cir. 2001). 4 18 U.S.C. § 2113(a), (f). 5 United States v. Guerrero, 169 F.3d 933, 944 (5th Cir. 1999). 6 Id.
3 the bank’s insured status, the evidence was insufficient to sustain
his conviction under Count 1. From the evidence we conclude that a
reasonable juror could have believed beyond a reasonable doubt that
Tatum committed the offense. We recount here the evidence amassed
at trial against him. In November 1998, the First State Bank in
Overton, Texas was robbed at gunpoint and bank president Ronnie
Ritch was kidnaped. He was found dead the next morning in a remote
ditch, shot three times, including a shot to the back of the head.
His tie was missing and a beer can was found next to his body. His
car was found in a cemetery in Kilgore, Texas. About one month
later, during an attempted robbery of Dusek’s Auto Sales in
Longview, Texas, a robber shot employee Robert Ely in the chest.
His wallet was missing when he was found.
Following an unrelated bank robbery, Charles Stephens was
apprehended by police.7 Officers found Ely’s missing wallet on
Stephens, and found a .38 caliber revolver in his car. Ballistics
tests showed that the revolver was the same one used to kill Ritch
and Ely. At around the same time, Tatum began telling fellow
inmates about his role in the murders of Ritch and Ely. Tatum told
Lamonte Bond that he went with “Chuck” to a car dealership in
Longview, where Chuck shot someone and didn’t get any money out of
the deal. Tatum also told Bond about attempting to rob a bank in
Overton. He said that they waited behind the bank, grabbed a man
7 Stephens died before he could be charged.
4 coming out, and tried to have him open the bank’s safe, but it was
on a time lock until morning. Tatum said that they drove the man
around, took him to a cemetery, and then Chuck killed him.
Sedrick Murry, a long-time friend of Tatum and Stephens, also
testified at trial under a grant of immunity. Murry testified that
Stephens tried to recruit him and Tatum to participate in the
Overton bank robbery, but Murry refused. Murry stated that after
the robbery Tatum told him that they had grabbed a man coming out
of the bank and asked him to open the vault, which he was unable to
do. They then took him out in the woods, and Stephens shot him in
the head. Tatum also told Murry about the car lot robbery. He said
that Stephens pretended to be looking for a car, entered the
office, asked for money, and when the man refused, Stephens shot
him in the chest. Murry identified the .38 revolver as Tatum’s and
a semiautomatic weapon as Stephen’s.
John Walsh was also incarcerated with Tatum. Tatum asked Walsh
how to escape the death sentence on a capital murder charge, and
told him about the kidnaping and murder of Ritch and the robbery
and murder of Ely. Walsh contacted the FBI, and an agent told him
not to question Tatum but to listen and report anything Tatum said
about the crimes. Later, Tatum told Walsh how he and Stephens
waited behind the bank and pulled a gun on Ritch when he came out.
Tatum said that the vault was on a timer and could not be opened,
and that Ritch was unable to get money for them from the night
deposit. Ritch tried and failed to escape, but when Stephens
5 attempted to shoot him his gun did not fire. Walsh said that Ritch
promised them money in the morning when the vault could be opened
but asked to leave a message for his deaf wife, but that Tatum
blindfolded Ritch with his tie and he and Stephens drove Ritch out
into the country. According to Walsh, Tatum said that Stephens got
Ritch out of the car, shot him, and left his body in a ditch. Tatum
also told Walsh about the car lot robbery, stating that Stephens
asked to use the phone and the restroom before pulling a gun and
asking for money. When Ely said that there was no money, Stephens
shot Ely and Tatum took Ely’s wallet. Tatum told Walsh that he
burned all the clothes he wore that day, except for his shoes, in
the trash pile behind his grandparents’ house. Walsh agreed to
record his next conversation with Tatum, and Tatum once again
discussed the crimes with Walsh. Although Walsh knew where the
microphones were located, they did not function properly and the
conversation was only partially recorded. The entire conversation
was videotaped, and Tatum is seen drawing a diagram of the Overton
bank as he reenacted the crime to Walsh.
Agents went to Tatum’s home, and searched the burn pile in his
yard with his mother’s consent. They found keys that matched those
missing from Ritch. They also interviewed Tatum, showing him the
diagram he drew and telling him that others had revealed his
admissions about the crimes. In the videotaped interview, Ritch
denied any involvement in the murders but mentioned putting a tie
around Ritch’s face, a fact about the crime that was not public at
6 the time. Other evidence was uncovered linking Tatum to the crimes,
including DNA from Ritch that was found on a pair of Stephens’
jeans, fingerprints from both Stephens and Tatum on a blue plastic
bag found at the scene of Ely’s murder, and fibers on Ritch’s
clothing that were consistent with the carpet in Stephens’ car.
Tatum claims that there is no physical evidence linking him to
the murder of Ritch, aside from the set of Ritch’s keys recovered
from a burn pile located behind his house. There is evidence of
Tatum’s participation. Sedrick Murry, a friend of Tatum, identified
the murder weapon as Tatum’s gun. Murry and two other witnesses
each testified that Tatum had admitted involvement in the attempted
bank robbery and murder of Ritch. One of these other witnesses,
fellow inmate John Walsh, testified that Tatum drew a diagram of
the bank and acted out what happened. This meeting was videotaped,
and portions of the videotape were played in the trial, as Walsh
testified. Tatum also mentioned to the case agent that Ritch’s
necktie was tied around his face, a detail of the crime that was
not known to the public at the time.
III
Tatum also argues that there is insufficient evidence to
sustain the verdict on Count 2. We are not persuaded. To the
contrary, the evidence implicating Tatum in this crime is
compelling.
Tatum’s fingerprints were found on a plastic bag at the murder
7 scene that was spattered with Ely’s blood, and the murder weapon
was identified as his gun. Three witnesses also testified that he
confessed to them, and the angle of Ely’s gunshot wound matched the
story recounted by these witnesses. In his videotaped conversation
with Walsh, Tatum wrote the number 80 on a diagram that
corresponded to the location of Dusek’s Auto Sales on Highway 80.
Moreover, Ely’s wallet and credit cards were found in Stephens’
possession, and evidence placed Tatum with Stephens on the night of
the murder. There was sufficient evidence to support the jury’s
verdict.
Tatum also urges that 18 U.S.C. § 1111 requires the government
to prove that the killing in Count 2 occurred within “the special
maritime and territorial jurisdiction of the United States.”8 He
mistakenly reads Section 1111(b) to mandate that death or life
imprisonment can only be imposed when a murder occurs within the
special maritime and territorial jurisdiction of the United
States.9 Section 1111(b) merely provides minimum sentences for
murders that occur within the special maritime and territorial
jurisdiction of the United States, and these minimum sentences are
not part of the definition of murder found in 18 U.S.C. § 1111(a).
8 18 U.S.C. § 1111(b). 9 Appellant’s Br. at 18.
8 Tatum’s argument is frivolous and requires no further analysis.10
Tatum also claims that his theory of “special maritime and
territorial jurisdiction” should have been presented to the jury,
thereby challenging the jury instructions given by the district
court. This court reviews challenges to jury instructions for abuse
of discretion.11 Because of the broad discretion afforded district
courts in framing the instructions to the jury, we will find an
abuse of discretion only if the charge as a whole is not a correct
statement of the law and does not clearly instruct the jurors
regarding the legal principles applicable to the factual issues
before them.12 Tatum’s argument is without merit and is based upon
a misreading of 18 U.S.C. § 1111. The district court did not abuse
its discretion.
- 3 -
Tatum also challenges his conviction for carrying a firearm
during and in relation to a crime of violence charged in Count 2,
arguing that the Hobbs Act robbery charged as the predicate crime
of violence was not sufficiently connected to interstate commerce
and thus did not “obstruct, delay, and affect and attempt to
obstruct, delay, and affect commerce” in violation of the Hobbs
10 The Fourth Circuit has also considered this argument and reached a similar conclusion. United States v. Young, 248 F.3d 260, 274-75 (4th Cir. 2001). 11 Cozzo v. Tangipahoa Parish Council-President Gov’t, 262 F.3d 501, 520 (5th Cir. 2001). 12 Id.
9 Act.13 We review constitutional challenges de novo.14
Tatum asserts that his taking of Ely’s wallet did not have a
direct effect on interstate commerce, and argues that United States
v. Lopez15 requires the government to show that the robbery had a
substantial effect on interstate commerce to justify the
application of the Hobbs Act. This court has rejected this
argument, holding that the government must merely demonstrate that
the actions have a de minimus nexus to interstate commerce if they
are of a type that, repeated many times over, would have a
“substantial effect” on interstate commerce.16
The jury was instructed that it did not have to find a
substantial effect upon interstate commerce in order to return a
guilty verdict for Count 2. The trial judge told the jury that as
long as the crime had “any effect at all on interstate commerce,”
the commerce element of the Hobbs Act was satisfied. Tatum
challenges this jury instruction. As stated, this court reviews
challenges to jury instructions for abuse of discretion.17
The district court did not abuse its discretion by instructing
13 18 U.S.C. § 1951. 14 United States v. Jennings, 195 F.3d 795, 800 (5th Cir. 1999). 15 514 U.S. 549 (1995). 16 See, e.g., Jennings, 195 F.3d at 800; United States v. Robinson, 119 F.3d 1205, 1208 (5th Cir. 1997). 17 Cozzo, 262 F.3d at 520.
10 the jury that the effect of the robbery on interstate commerce must
only be minimal. That instruction is correct, given that this Court
held in Robinson that robberies can be aggregated under the Hobbs
Act to satisfy the constitutional demand of a substantial effect on
commerce.18 Even the minimal impact upon interstate commerce of a
single crime is sufficient for Hobbs Act purposes under the law of
this Circuit, and Tatum’s challenge fails.
IV
Tatum next claims that Count 2 is duplicitous because it joins
two distinct offenses—the robbery of Ely and the attempted robbery
of Dusek’s Auto Sales—in a single count. Count 2 charges Tatum with
a violation of 18 U.S.C. § 924(j), a firearms murder during or in
relation to a violent crime. The two “distinct offenses” are in
fact predicate offenses for the Section 924(j) offense. We assess
the indictment to determine whether it can be read to charge only
one violation in each count.19
In this case, there is only one crime—a firearms murder during
or in relation to a violent crime. The violent crime that serves as
the predicate offense is a single, continuing scheme: an attempt to
rob Dusek’s Auto Sales. The robbery of Ely was part and parcel of
this scheme. There is no duplicity.
18 Robinson, 119 F.3d at 1214; see United States v. Hickman, 179 F.3d 230, 231 (5th Cir. 1999) (en banc). 19 United States v. Sharpe, 193 F.3d 852, 866 (5th Cir. 1999).
11 Tatum also argues that the jury should have been permitted to
choose between robbery and attempted robbery in Count 2. This
argument is similarly without merit, and the district court did not
abuse its discretion.
V
Tatum further claims that the district court erred by denying
his motion for mistrial based upon the admission of out-of-court
statements made by a deceased co-defendant (Stephens). The district
court admitted them as statements made in furtherance of a
conspiracy and statements against interest. We review the district
court’s denial of a motion for mistrial for an abuse of
discretion.20
The statements that Tatum sought to exclude were made by
Stephens to Murry, asking him to be their driver in the bank
robbery and relating details about the robbery to him. Stephens
showed Murry the bank and discussed a possible escape route, showed
Murry a fake dollar bill that had belonged to Ritch, and stated
that he had a blood spot on his pants. Stephens also told Murry
about the car lot robbery, and identified their weapons to him.
The district court found that several of Stephens’ statements
were admissible as statements made in furtherance of his conspiracy
with Tatum, under Rule 801(d)(2)(e). Under Rule 801(d)(2)(e), the
20 United States v. Wyly, 193 F.3d 289, 298 (5th Cir. 1999).
12 proponent of a statement must prove by a preponderance of the
evidence (1) the existence of the conspiracy, (2) the statement was
made by a co-conspirator of the party, (3) the statement was made
during the course of the conspiracy, and (4) the statement was made
in furtherance of the conspiracy.21
Tatum admits that some statements made by Stephens to Murry
were made in furtherance of the conspiracy, and that other
statements made by Stephens were admissible as statements against
interest under Rule 804(b)(3). He merely argues that Stephens’
statements that do not fit either of these exceptions were
inadmissable. That statement is indeed true, but Tatum fails to
provide any specific statements that were not in furtherance of the
conspiracy or against Stephens’ interest. The only specific
statement challenged by defense counsel at trial was Stephens’
identification of Tatum’s weapon, but this error is harmless given
that Tatum acknowledged the same information. The district court
did not abuse its discretion.
Additionally, Tatum claims that the district court erred by
denying his motion to suppress evidence found during a search of
his automobile and the burn pile behind his house. We review the
district court's findings of fact supporting the denial of a motion
to suppress under a clearly erroneous standard and review the
21 United States v. Cornett, 195 F.3d 776, 782 (5th Cir. 1999).
13 district court's conclusions of law de novo.22
Although the Fourth Amendment prohibits the warrantless entry
of a person’s home, the prohibition does not apply to situations in
which voluntary consent has been obtained, either from the
individual whose property is searched or from a third party who
possesses common authority over the premises.23 The police obtained
permission to search the premises from Tatum’s mother, with whom
Appellant lived. Although Tatum claims that his mother was under
duress when she consented to the search, he provided no evidence to
support this claim. Tatum admits that his mother signed a form that
consented to the search, and the mother’s authority to consent is
undisputed.24 Tatum also challenges the search warrant that was
issued for his automobile, as well as the officers’ good faith
reliance upon a facially valid warrant. We review these challenges
de novo, and conclude that Tatum’s arguments are without merit.
Tatum also challenges the voluntariness of his confession to
Walsh. A confession is voluntary if it is the product of the
defendant's free and rational choice. It is voluntary in the
absence of official overreaching, either by direct coercion or
22 United States v. Singh, 261 F.3d 530, 535 (5th Cir 2001). 23 Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). 24 United States v. Matlock, 415 U.S. 164, 171 (1974).
14 subtle psychological persuasion.25 Whether a confession is voluntary
is determined by considering the totality of the circumstances.26
In reviewing a ruling on a motion to suppress a confession, we give
credence to the credibility choices and fact finding by the
district court unless they are clearly erroneous. The ultimate
issue of voluntariness is a legal question reviewed de novo.27
Tatum initiated the conversation with Walsh, and Walsh was
instructed by officers not to question Tatum about the crimes or
solicit any further information. Tatum was not coerced to continue
his conversations with Walsh, which he could have ended at any
time. Tatum has presented no evidence to suggest that his
confession was involuntary.
Tatum also claims that Walsh could not speak with him until
Tatum received Miranda warnings and waived his rights. This
argument is foreclosed by the Supreme Court’s decision in Illinois
v. Perkins.28 Tatum’s argument that Walsh was recruited as a
government agent is also without merit. Walsh approached the
officers after Tatum began speaking to him. Similarly, Tatum’s
Sixth Amendment right to counsel was not improperly interfered
with. The Sixth Amendment right to counsel attaches only to charged
25 United States v. Mullin, 178 F.3d 334, 342 (5th Cir. 1999). 26 Id. 27 Id. 28 496 U.S. 292, 296 (1990).
15 offenses and does not attach until a prosecution is commenced.29
Tatum’s final argument, that the district court abused its
discretion by denying his motion to admit testimony establishing
that a government witness was deceptive on a FBI polygraph
examination, is also without merit.
VI
For the foregoing reasons, we AFFIRM Tatum’s convictions.
29 Texas v. Cobb, 532 U.S. 162 (2001).