                                                                                          [PUBLISH]

                    IN THE UNITED STATES COURT OF APPEALS
                           FOR THE ELEVENTH CIRCUIT
                                                                                       FILED
                              -------------------------------------------
                                                                           U.S. COURT OF APPEALS
                                            No. 98-2519                      ELEVENTH CIRCUIT
                                                                                  06/03/99
                              --------------------------------------------    THOMAS K. KAHN
                                                                                   CLERK
                              D. C. Docket No. 97-334-CR-T-25C


UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

      versus


SALVATORE PISTONE,
                                                                 Defendant-Appellant.



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                         Appeal from the United States District Court
                             for the Middle District of Florida

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                                           (June 3, 1999)


Before EDMONDSON and BLACK, Circuit Judges, and PAUL*, Senior District Judge.


_______________

*     Honorable Maurice M. Paul, Senior U.S. District Judge for the Northern District of
      Florida, sitting by designation.
PER CURIAM:

                                 I. INTRODUCTION

      This is an appeal from a jury verdict on a one-count indictment charging

Defendant Pistone, and two co-defendants, Sean Michael Kirlew and Nicholas

Andrew King, with violating 18 U.S.C. § 1951 by combining, conspiring,

confederating and agreeing to rob an armored car by means of actual and

threatened force, violence, and fear of injury to the armored car guards. His co-

defendants entered guilty pleas, received 5K1.1 certificates, and each was

sentenced to thirty (30) months imprisonment and three years of supervised

release. The district judge denied Pistone’s motion for a new trial, his two motions

for judgment of acquittal notwithstanding the verdict, and his renewed motion for

judgment of acquittal, and then sentenced Pistone within the guidelines to 112

months imprisonment and three years of supervised release. Pistone appeals the

denial of his motions and the district judge’s increase of his offense level by two

levels, under U.S.S.G. § 2B3,1(b)(1), because the object of the offense was to take

the property of a financial institution.




                                           2
                      II. ISSUES ON APPEAL

(1)   Whether, as a matter of law, the government is required
      to allege and prove an overt act in a prosecution for
      conspiracy to obstruct commerce in violation of 18
      U.S.C. § 1951?

(2)   Whether the district court erred in denying Defendant’s
      motions for new trial and for judgment of acquittal?

(3)   Whether the district court erred in finding that an object
      of the conspiracy of conviction was to take the property
      of a financial institution, and in increasing his offense
      level from 22 to 24, under U.S.S.G. §2B3.1(b)(1), based
      on that finding?

                  III. STANDARDS OF REVIEW

(1)   Issue One: The interpretation of a statute is a question of
      law subject to de novo review.

(2)   Issue Two: The district court’s denial of a motion for
      new trial is reviewed for an abuse of discretion. See
      United States v. Cox, 995 F.2d 1041, 1043 (11th Cir.
      1993). Denials of motions for judgment of acquittal,
      before and after entry of a verdict, are reviewed de novo,
      and to uphold the denial thereof, this Court need only
      determine that a reasonable fact-finder could conclude
      that the evidence established the defendant’s guilt beyond
      a reasonable doubt. See United States v. Keller, 916 F.2d
      628, 632 (11th Cir. 1990).

(3)   Issue Three: The district judge’s factual findings are
      reviewed under the clearly erroneous standard, while its
      interpretation of the Sentencing Guidelines is reviewed
      de novo. See United States v. Gonzalez, 2 F.3d 369 (11th
      Cir. 1983).


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                                       IV. FACTS

       Pistone worked at All-American Auto (“AA Auto”) in Tampa, Florida as an

automobile salesperson. Sometime before July 25, 1997, a new employee, Clifford

Kelly began working at AA Auto.1 Kelly reported to FDLE Agent Pope that

Pistone had been talking about organizing an armored car robbery with the co-

defendants Sean Kirlew and Kirlew’s half-brother, Nicholas King. Kirlew and

King had attempted to rob an armored car in May of 1996. Upon learning of the

plans, agent Pope instructed Kelly to begin tape recording his conversations with

Pistone regarding the robbery plan. All but one of the conversations regarding the

armed robbery conspiracy were recorded, transcribed, and introduced at trial. The

evidence at trial consisted of five live witnesses (the two co-defendants, the

confidential informant Kelly, agent Pope, and a representative of Loomis Fargo)

and the recorded conversations. No overt act was listed in the indictment and none

was presented at trial.

       The following summary of the facts -- which are supported by the record --

is taken from the government’s brief:




  1
      Unbeknownst to Pistone, Kelly was working as a confidential informant for the FDLE and
the DEA as part of his plea and cooperation agreement in an unrelated narcotics charge in the
hopes of obtaining a 5k1.1 certificate.

                                              4
      In July 1997, Pistone approached Kirlew and King separately and told them

he wanted to rob an armored car; they both testified that Pistone was serious in this

regard, and both agreed to participate.

      On July 26, King agreed with Pistone and Kelly to rob the guards of an

armored car – King was merely to take the money once the robbery was committed

and he did not participate in the planning of the actual robbery, the selection of a

route to target, or a date for the robbery.

      On July 29, Kirlew agreed with Pistone to rob the guards of an armored car

and that Pistone would organize the robbery. Kirlew knew that he and King would

take the money from the guard and King would drive. Kirlew had worked for

Loomis Fargo as an armored car guard in Tampa, and he was familiar with the

Loomis routes, including the Sun Trust route.

      Pistone, King, and Kirlew agreed that the robbery would have to net at least

five to ten million dollars to be worthwhile, and that they would have to use guns.

All three of these men were arrested before they carried out their plan.

      At the close of the government’s case, Pistone moved for a judgment of

acquittal arguing that the government was required to allege and prove an overt act

in furtherance of the charged conspiracy. This motion, as well as his two motions




                                              5
for judgment of acquittal notwithstanding the verdict, and a motion for new trial,

were all denied.

                                      V. DISCUSSION

       This court has considered and decided against him each of the issues raised

by the Appellant, but discusses only the first: whether, as a matter of law, the

government is required to allege and prove an overt act in a prosecution for

conspiracy to obstruct commerce in violation of 18 U.S.C. § 1951? We have not

previously decided this issue.2 The circuits which have spoken on it are divided.

See United States v. Tormos-Vega, 959 F.2d 1103, 1115 (1st Cir. 1992); United

States v. Maldonado-Rivera, 922 F.2d 934, 983 (2d Cir. 1990); but see United

States v. Stephens, 964 F.2d 424 (5th Cir. 1992) (including, without elaboration, an

overt act among Hobbs Act’s elements);United States v. Stodola, 953 F.2d 266,

270 (7th Cir. 1992) (same); United States v. Villarreal, 764 F.2d 1048 (5th Cir.

1985) (same). We follow the First and Second Circuits: no overt act must be

alleged and proved.

       The government urges that the district court properly concluded that the

Hobbs Act conspiracy to obstruct commerce, 18 U.S.C. § 1951, does not require an


   2
    In United States v. Thomas, 8 F.3d 1552, 1560 n.18 (11th Cir. 1993), this Circuit elected not
to address the issue because in that case the government had alleged and proven an overt act and
because no argument either way had been advanced regarding such a requirement.

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overt act. Appellant on the other hand, argues that it does, because the term

“conspires,” found under the general crime of conspiracy in 18 U.S.C. § 371, does

require proof of an overt act. Over Pistone’s objection, the jury was not instructed

that they needed to find an overt act had been committed in furtherance of the

Hobbs Act conspiracy.

       Defendant argues that Congress clearly intended for the 1946 Amendment to

18 U.S.C. § 420a-420e (the Anti-Racketeering Act) to include an overt act as part

of the definition of conspiracy, because, in 1948 the statute was amended again and

included under the enactment of Title 18, Crimes and Criminal Procedure. Under

Part I of Title 18, entitled “The Crimes,” Pistone notes that the general crime of

conspiracy appears at § 371, with an overt act as one of its elements.3 The

amended version of § 1951 replaced the words: “participates in an attempt” and “or

acts in concert with another or with others,” with: “attempts or conspires so to do.”

Pistone argues that § 1951 now only contains definitions for robbery and

commerce, but not “conspires.” For the definition of “conspires” within Title 18,

Pistone argues that one would have to turn to the general crime of conspiracy

found at § 371, requiring an overt act.

   3
    Section 371, entitled “Conspiracy to commit offense or to defraud United States” provides
for punishment “[i]f two or more persons conspire . . . to commit any offense against the United
States . . . and one or more of such persons do any act to effect that object of the conspiracy . . .
.” 18 U.S.C. § 371.

                                                  7
      The plain language of § 1951 does not include the requirement of an overt

act. Specifically, § 1951 provides:

             [w]hoever in any way or degree obstructs, delays, or
             affects commerce . . . by robbery . . . or attempts or
             conspires to so do, . . . shall be fined under this title or
             imprisoned not more than twenty years.

18 U.S.C. § 1951. And, we will not imply in the Hobbs Act an overt-act

requirement which Congress has left out of the statute’s language.

      Contrary to Defendant’s argument, the omission of an overt-act requirement

in the Hobbs Act -- in contrast to the inclusion of such a requirement in § 371--

counsels in favor of not imputing such a requirement. The Supreme Court has

previously refused to imply an overt-act requirement in a similar context. See

United States v. Shabani, 513 U.S. 10, 12 (1994) (refusing to imply an overt act

requirement into 21 U.S.C. § 846 conspiracies). In Shabani the Court noted that in

light of Congress’s specific inclusion of an overt-act requirement in the general

conspiracy statute, § 371, its silence regarding that requirement in a more specific

conspiracy statute means that Congress dispensed with such a requirement. See id.

at 14. For the same reason, we refuse to imply an overt-act requirement in the

language of the Hobbs Act.

                                 VI. CONCLUSION



                                            8
      We align ourselves with the First and Second Circuits and now decide that

the government is not required to allege and prove an overt act in a prosecution for

conspiracy to obstruct commerce in violation of 18 U.S.C. § 1951.

      For the reasons stated herein, the judgment is AFFIRMED.




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