                                                                         F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         DEC 12 2000
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 99-6436
 v.
                                                (D.C. No. 98-CR-203-A)
                                              (Western District of Oklahoma)
 ERIC WAYNE DOTSON,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, HENRY, and LUCERO, Circuit Judges.


      This is a direct appeal from defendant-appellant Eric Wayne Dotson’s

conviction for robbing a jewelry store in violation of the Hobbs Anti-

Racketeering Act of 1934, 18 U.S.C. § 1951 (“Hobbs Act”), carrying a firearm

during a crime of violence in violation of 18 U.S.C. § 924(c)(1), and transporting

at least $5,000 worth of stolen diamonds in interstate commerce in violation of 18

U.S.C. § 2314. Dotson was sentenced to serve 322 months imprisonment as a

career offender under U.S.S.G. § 4B1.1. He was also ordered to pay nearly



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
$125,000 in restitution to the jewelry store and $3,500 to the employee he robbed.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

                                           I

      Defendant-appellant confessed to robbing Gordon’s Jewelers (“Gordon’s”)

in Oklahoma City, Oklahoma on March 25, 1998. Dotson stole twenty-two

solitaire diamond rings and five loose stones worth $145,245. Among the rings

he stole were a 1.50-carat round certified diamond, a 1.64-carat round diamond,

and a 1.01-carat pear-shaped diamond. Dotson denies having used a firearm

during the robbery.

      On March 27, 1998, two days after the robbery of Gordon’s, Dotson sold

some diamonds to Astor Jewelers (“Astor”) in Memphis, Tennessee. He sold

Astor three loose stones (not rings): a 1.50-carat round diamond, a 1.65-carat

round diamond, and a 1.01-carat pear-shaped diamond.

      A federal public defender was appointed to assist Dotson in his defense.       At

a pretrial hearing, Dotson asked to proceed pro se. Although the court advised

him of his Sixth Amendment right to counsel and of the value and experience of

appointed counsel, Dotson refused assistance citing his previous experiences with

self-representation.

      In this appeal, Dotson challenges the sufficiency of the court’s inquiry into

his knowing, intelligent waiver of the right to counsel, the court’s response to a


                                          -2-
question from the jurors, the sufficiency of the evidence subjecting him to

liability for interstate transportation of stolen goods, and the jury instruction on

the Hobbs Act charge.       Dotson also challenges the award of restitution under 18

U.S.C. § 3663A on the ground that lost income and medical expenses cannot be

awarded absent “bodily injury” to the victim.

                                                II

       Dotson argues the court did not sufficiently explore whether his request to

waive counsel was made knowingly and intelligently.          1
                                                                 We review de novo

whether a waiver of counsel was voluntary, knowing and intelligent; we review

for clear error the district court’s findings of fact.    See United States v. Taylor ,

113 F.3d 1136, 1140 (10th Cir. 1997);         United States v. Mackovich , 209 F.3d

1227, 1236 (10th Cir.),     cert. denied sub nom. Mackovich v. United States , 121 S.

Ct. 248 (2000).

       The Sixth Amendment provides an accused both the right to counsel and

the right to conduct one’s own defense.         See Faretta v. California , 422 U.S. 806,

821 (1975). In order to be valid, a waiver of counsel must be made voluntarily,

knowingly, and intelligently.       See Taylor , 113 F.3d at 1140. When conducting an

inquiry into the sufficiency of an accused’s waiver of counsel, a court must look

to “the entire circumstances of the case, including the defendant’s age, education,


       1
           Dotson admits that his waiver of counsel was voluntary.

                                               -3-
. . . experience with criminal trials and [his] background, experience, and

conduct.” Id. (citing United States v. Padilla , 819 F.2d 952, 958 (10th Cir.

1987)). The court is required to ensure the defendant is actually aware of the

“dangers and disadvantages” involved in proceeding pro se.     Faretta , 422 U.S. at

835.

       In this appeal, Dotson argues he did not have “a sense of the magnitude of

the undertaking and the inherent hazards of self-representation.” (Appellant’s Br.

at 15 (quoting Taylor , 113 F.3d at 1141).) He argues the court’s failure to ask

him his reasons for proceeding pro se and to inquire into whether he actually

understood the consequences of his decision rendered his waiver constitutionally

insufficient.

       Dotson’s argument is inadequate. Not only did the judge inform him of his

right to counsel and ask him multiple times whether he was certain he wanted to

waive that right, but the judge also plainly informed him he would be better off

with counsel. “[M]y free advice is that a trained and experienced lawyer could

defend you better than you could defend yourself. . . . [I]t’s probably not very

wise on your part to represent yourself here because a trial is a technical

procedure . . . .” (2 R. at 10-11.)   The judge explained to Dotson the potential

sentences he faced and assessed that he was well-informed, experienced and

intelligent. We therefore affirm the district court’s decision to allow Dotson to


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waive counsel and deny Dotson’s request for a reversal and new trial on waiver of

counsel grounds.

                                             III

       When a jury instruction is challenged for the first time on appeal, this Court

reviews for plain error.     See United States v. Duran , 133 F.3d 1324, 1330 (10th

Cir. 1998); Fed. R. Crim. P. 52(b). In order to establish plain error, an appellant

must show (1) an error (2) that is plain or contrary to clearly established law and

(3) that affects substantial rights.   See Duran , 133 F.3d at 1330. Once these three

conditions are met, this Court may reverse only if the error “seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings.”      Id. (quoting

Johnson v. United States , 520 U.S. 461, 466 (1997) (quoting         United States v.

Olano , 507 U.S. 725, 732 (1993))).

       Although Dotson confessed to robbing Gordon’s, he denied using a firearm

during the robbery. He did, however, admit that he pretended to have one. The

clerk from whom Dotson took the jewelry, Dee Violette, was uncertain about his

possession and use of a gun. Prior to trial, she stated the robber had not drawn a

weapon. Later she said she thought he probably had possessed a real gun.

       Dotson was convicted under 18 U.S.C. § 924(c)(1)(A), which proscribes

using or carrying a firearm “during and in relation to any crime of violence or

drug trafficking crime.” Because of the apparent confusion as to whether Dotson


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was carrying a real gun during the robbery or was only pretending to carry a gun,

the jury sent a question to the court asking, “Does it make a difference if we

believe the defendant only pretended to have a gun rather than actually had one?”

(6 R. at 660-664.)   The court responded by saying, “Yes. Mr. Dotson may be

found guilty of Count Two only if all three elements of that offense are proved

beyond [a] reasonable doubt. See, in that respect, Instruction Number 24.” (      Id. at

664.) Jury instruction 24 stated the essential elements of a § 924(c)(1) violation:

“defendant committed the crime of interference with commerce by robbery . . . ;

defendant knowingly used or carried a firearm;” and “defendant used or carried

the firearm during and in relation to the crime.”     (1 R. Doc. 31.)

       Dotson claims that the court’s response to the jury’s question concerning

whether the alleged gun was real was insufficient to clear up the jury’s confusion.

He argues the instruction itself was deficient because it did not define what a

“firearm” is for purposes of § 924(c)(1). Citing     United States v. Warren , 984

F.2d 325, 330-31 (9th Cir. 1993), he further argues that simply reiterating a

previous general jury instruction will not suffice to resolve the jury’s confusion.

       Only “particularly egregious” jury instruction errors should be corrected

under plain error review.    See United States v. Young , 470 U.S. 1, 15 (1985)

(quoting United States v. Frady , 456 U.S. 152, 163 (1982)). An error arises if,

“considering the instructions as a whole, the jury has been misled.”      Duran , 133


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F.3d at 1330. In the instant case, we conclude the court’s answer to the jury’s

question was neither erroneous nor misleading. The court’s answer, “yes,”

concisely informed the jury that they were required to find Dotson was carrying a

real gun in order to convict him of a § 924(c) violation. The court’s reference to

the prior jury instruction informed them that they were also required to find

Dotson met the three elements of a § 924(c) violation. The fact that the jury did

not ask the court any further questions is indicative of the conclusiveness of the

court’s answer.   Cf. Duran , 133 F.3d at 1328-29 (noting that the jury asked the

judge repeated questions and reversing on the improper jury instruction claim).

                                          IV

      Dotson argues the evidence at trial was insufficient to prove he transported

stolen goods between states in violation of 18 U.S.C. § 2314. When reviewing a

challenge to the sufficiency of the evidence, this Court considers, in the light

most favorable to the government, both the direct and circumstantial evidence

together with any reasonable inferences that can be drawn therefrom and decides

whether a reasonable jury could find the defendant guilty beyond a reasonable

doubt. See United States v. Floyd , 81 F.3d 1517, 1525 (10th Cir. 1996).

      After carefully reviewing the record, we conclude a reasonable jury could

have found the defendant guilty beyond a reasonable doubt of transporting stolen

goods between states. The undisputed evidence shows Dotson sold diamonds to


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Astor of essentially the same size, quality, and shape of those taken from

Gordon’s just two days after the robbery of Gordon’s. Dotson asserts that

although the diamonds sold to Astor were stolen, they were stolen from

somewhere other than Gordon’s–namely, Winchester Pawn Shop. He points out

that the diamonds sold to Astor were not mounted on ring settings. Yet in his

own brief he admits that diamond rings can be easily removed from their

mountings without affecting the diamonds’ quality. The evidence thus gave rise

to a reasonable inference that the diamonds were in fact those stolen from

Gordon’s such that a jury could find Dotson guilty beyond a reasonable doubt.

See United States v. Kim , 105 F.3d 1579, 1584 (10th Cir. 1997) (“The

Government may prove the existence of stolen goods by demonstrating that the

recovered material is similar to the stolen items.” (citation omitted)).

                                          V

      Next, Dotson argues the district court improperly instructed the jury that

they were only required to find a de minimis effect on interstate commerce to find

Dotson in violation of the Hobbs Act. Dotson did not object to the court’s

instruction at the time of trial and he acknowledges in his brief that this Circuit

has upheld instructions and convictions under the Hobbs Act based on only a de

minimis showing of effect on interstate commerce.       See, e.g. , United States v.

Nguyen , 155 F.3d 1219, 1224 (10th Cir. 1998);      United States v. Bolton , 68 F.3d


                                          -8-
396, 399 (10th Cir. 1995). However, in light of the Supreme Court’s decision in

Jones v. United States , 526 U.S. 227 (1999), Dotson urges us to depart from our

precedent and hold either that “Congress lacks power under the Commerce Clause

to regulate robbery, a noneconomic activity” or that the jurisdictional element of

the Hobbs Act requires proof of a “substantial effect on interstate commerce.”

(Appellant’s Reply Br. at 7.)

       In the period between briefing and oral argument, this Court decided       United

States v. Malone , 222 F.3d 1286 (10th Cir. Aug. 23, 2000), and     addressed

precisely the arguments now made by Dotson. In       Malone , we reviewed whether

the Supreme Court’s decision in    Jones supported the argument that more than a de

minimis showing of effect on interstate commerce is required to prove a Hobbs

Act violation.   See id. at 1295. The Hobbs Act states, in relevant part,

“[W]hoever in any way or degree . . . affects commerce or the movement of any

article or commodity in commerce . . . by robbery . . . shall be fined . . . or

imprisoned . . . .” 18 U.S.C. § 1951(a). We concluded the Hobbs Act expressly

regulates economic activity and that   Jones does not impact our prior Hobbs Act

jurisprudence.   Malone , 222 F.3d at 1295. Accordingly, we hold the district court

did not err in instructing the jury that only a de minimis effect on interstate

commerce is necessary to meet the requirements of the Hobbs Act.




                                           -9-
                                             VI

       Dotson’s final argument on appeal is that the district court’s restitution

order was illegal under 18 U.S.C. § 3663A because it compensated a victim for

lost income and medical expenses for mental suffering even though the victim did

not suffer bodily injury. Due to Dotson’s failure to object at sentencing, we

review for plain error whether an award of restitution was properly ordered.    See

United States v. Coleman , 9 F.3d 1480, 1486 n.4 (10th Cir. 1993).

       The Victim Witness and Protection Act of 1982, Pub. L. No. 97-291, 96

Stat. 1248 (“VWPA”), permits a court to order restitution to be paid to any victim

of the offense.   See 18 U.S.C. §§ 3663, 3663A. Section 3663(b)(2) states that

        in the case of an offense resulting in      bodily injury to a
        victim–[defendant shall]

        (A) pay an amount equal to the cost of necessary medical and related
        professional services and devices relating to physical, psychiatric,
        and psychological care . . .

        (B) pay an amount equal to the cost of necessary physical and
        occupational therapy and rehabilitation; and

        (C) reimburse the victim for income lost by such victim as a result
        of such offense . . . .

(emphasis added).

       Dotson does not argue the offense he committed cannot support an award of

restitution under VWPA. Rather, he argues the Act only authorizes lost income

and medical expenses for mental suffering if the offense also resulted in bodily

                                             -10-
injury to the victim. Indeed, it appears that every federal court to consider the

issue has determined restitution cannot be ordered under VWPA for lost income

and emotional damages unless the victim suffered bodily, i.e., physical, harm.

See, e.g. , United States v. Dayea , 73 F.3d 229, 231 (9th Cir. 1995)   ; United States

v. Sharp , 927 F.2d 170, 174 (4th Cir. 1991).

       We decline to reach the issue of whether an award of restitution for lost

income and medical expenses can be predicated on a victim’s mental injuries

alone. Although there is an argument to be made that the court’s interpretation of

VWPA may have been erroneous, we do not conclude it constituted plain error so

as to have “seriously affect[ed] the fairness, integrity or public reputation of

[these] judicial proceedings.”    Olano , 507 U.S. at 736; see also Duran , 133 F.3d at

1330. At best, the statute is ambiguous with regard to the scope of “bodily

injury” and the law is by no means clearly established; thus, the district court’s

award of restitution was not plainly erroneous.

       Moreover, the results reached in other Circuits interpreting the scope of the

phrase “bodily injury” in § 3663(b)(2) are by no means conclusive. Federal law

deems mental injury to constitute bodily injury in other contexts.      See, e.g. , 18

U.S.C. § 1365(g)(1)(B)(3) (defining the phrase “bodily injury” to include

“impairment of the function of a bodily member, organ, or mental faculty”);

U.S.S.G. § 1B1.1, comment (j) (defining “serious bodily injury” to include


                                            -11-
protracted impairment of a “function of a bodily member, organ, or mental

faculty”). Moreover, § 3663(b)(2) uses the term “bodily” while § 3663(b)(2)(A)

enumerates “physical, psychiatric, and psychological care” separately, indicating

that perhaps “bodily injury” is a holistic phrase referring to all aspects of the

body, physical and psychological.

                                              VII

      The judgment of the district court is          AFFIRMED .



                                         ENTERED FOR THE COURT


                                         Carlos F. Lucero
                                         Circuit Judge




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