                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 13-3727
                                       ___________

                            UNITED STATES OF AMERICA,

                                             v.

                                      MARC VINEY,
                                                Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                           (D.C. Crim. No. 2-12-cr-00308-001)
                     District Judge: Honorable Mary A. McLaughlin
                      ____________________________________

                       Submitted under Third Circuit LAR 34.1(a)
                                   October 30, 2014


   Before: MCKEE, Chief Judge, GREENAWAY, JR. and KRAUSE, Circuit Judges


                                (Filed: November 6, 2014)



                                        OPINION*




       * This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
KRAUSE, Circuit Judge.

         Marc Viney was arrested and charged with the armed robbery of the Roo House

Tavern (“the Tavern”), a bar located in Norristown, Pennsylvania. After a four-day jury

trial, Viney was convicted of interference with interstate commerce by robbery (“Hobbs

Act robbery”), in violation of 18 U.S.C. § 1951(a), conspiracy to interfere with interstate

commerce by committing a Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), and

using and carrying a firearm during and in relation to a crime of violence, in violation of

18 U.S.C. § 924(c)(1)(A). Viney now raises three issues on appeal, which we address in

turn.1

         First, Viney argues that he should have been granted a judgment of acquittal due

to insufficient evidence pursuant to Federal Rule of Criminal Procedure 29 and should

have been granted a new trial pursuant to Federal Rule of Criminal Procedure 33. In

reviewing a Rule 29 motion for a judgment of acquittal, “we view the evidence in the

light most favorable to the prosecution and sustain the verdict unless it is clear that no

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.”2 The standard is similarly exacting under Rule 33, where a district

court should order a new trial “only if it believes that there is a serious danger that a




         1
         We have jurisdiction to hear the appeal under 28 U.S.C. § 1291. Because we
write for the parties, we recite only those facts necessary to our conclusion.
       2
         United States v. Mercado, 610 F.3d 841, 845 (3d Cir. 2010) (citations omitted);
see also United States v. Walker, 657 F.3d 160, 171 (3d Cir. 2011).
                                               2
miscarriage of justice has occurred—that is, that an innocent person has been

convicted.”3

       The District Court’s denial of each motion was proper. The record contains ample

evidence of Viney’s guilt, including the detailed testimony of the complaining witness,

Roosevelt Haulcy II (“Haulcy”); Haulcy’s immediate identification of “Marc” as the

assailant on the day of the crime; Haulcy’s testimony about the firearm used by Viney in

commission of the crime; and, a document in Viney’s pocket that listed a number of

individuals’ names, home addresses and automobile descriptions, that had Haulcy’s

information highlighted in yellow, and that listed, under the header of “Work Tools,”

assault rifles, handguns, a speed loader, handcuffs, a GPS system and bulletproof vests.4

       Moreover, there was sufficient evidence regarding the robbery’s effect on

interstate commerce, including that Viney stole alcohol produced in France; that the

Tavern served alcohol produced in France; that the Tavern served alcohol produced in

other states; and, that the Tavern served customers from outside Pennsylvania.5

Accordingly, finding ample evidence to support the jury’s verdict, we reject Viney’s Rule

29 and Rule 33 appeals.


       3
         United States v. Johnson, 302 F.3d 139, 150 (3d Cir. 2002) (citations and internal
quotation marks omitted).
       4
         J.A. 543-47, 679-80.
       5
         See, e.g., United States v. Haywood, 363 F.3d 200, 211 (3d Cir. 2004) (holding
effect on interstate commerce satisfied through testimony that robbed bar in Virgin
Islands served beer that was brewed in United States); United States v. Clausen, 328 F.3d
708, 711-12 (3d Cir. 2003) (holding effect satisfied when business purchased supplies
from out of state and had some out-of-state customers).
                                             3
       Second, Viney argues that requiring only a de minimis effect on interstate

commerce for Hobbs Act robberies is unconstitutional. As Viney acknowledges,

however, our controlling precedent forecloses such an argument.6

       Third, Viney argues that our model jury instructions for Hobbs Act robberies are

unconstitutional, because they instruct a jury that only proof of a de minimis effect is

necessary to establish the requisite effect on interstate commerce. We have previously

considered and rejected this argument.7 We do so again here.

       In sum, we conclude that Viney’s conviction was supported by ample evidence,

and that our precedent on the effect a Hobbs Act robbery need have on interstate

commerce is well settled. Accordingly, we affirm.




       6
          See, e.g., Clausen, 328 F.3d at 711 (holding that “proof of a de minimis effect on
interstate commerce is all that is required” for purposes of Hobbs Act robbery effect on
interstate commerce); Walker, 657 F.3d at 180; United States v. Urban, 404 F.3d 754,
780 (3d Cir. 2005). Contrary to Viney’s suggestion, the Supreme Court’s decision in
National Federation of Independent Businesses v. Sebelius, 132 S. Ct. 2566 (2012), does
not abrogate our holding in any way. See, e.g., United States v. Sullivan, 753 F.3d 845,
854 (9th Cir. 2014) (rejecting Sebelius-based challenge to federal child-pornography
statutes); United States v. Roszkowski, 700 F.3d 50, 57-59 (1st Cir. 2012) (rejecting
Sebelius-based challenge to statute which prohibits “convicted felons from possessing a
firearm in or affecting commerce”) (internal quotations omitted).
        7
          See, e.g., United States v. Powell, 693 F.3d 398, 406-07 (3d Cir. 2012); Urban,
404 F.3d at 780.
                                               4
