                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 08-6787


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

HENDERSON L. HINTON,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City.   Terrence W.
Boyle, District Judge. (2:06-cr-00015-BO-1)


Argued:   December 4, 2009                 Decided:   February 24, 2010


Before WILKINSON and KING, Circuit Judges, and Henry E. HUDSON,
United States District Judge for the Eastern District of
Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED:   Jeanette  K.   Doran,  NORTH  CAROLINA   INSTITUTE  OF
CONSTITUTIONAL LAW, Raleigh, North Carolina, for Appellant.
Banumathi Rangarajan, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.   ON BRIEF: George E. B.
Holding, United States Attorney, Anne M. Hayes, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

         Following a trial by jury, Henderson L. Hinton was found

guilty of two counts of interfering with commerce by robbery, 18

U.S.C. § 1951; one count of armed bank robbery, 18 U.S.C. §

2113(a) and (d), 18 U.S.C. § 2; and three counts of using a

firearm during and in relation to a crime of violence, 18 U.S.C.

§ 924(c)(1).           The defendant appeals his convictions on multiple

grounds, including sufficiency of the evidence and an alleged

fatal variance in proof.            We affirm the judgment.



                                             I.

        Taken in the light most favorable to the government, Evans

v.   United        States,    504   U.S.     255,      257    (1992),    the    evidence

presented at trial established the following.                           On October 16,

2006,    a    person     armed   with    a   revolver        entered    the    Nationwide

Insurance Agency in Ahoskie, North Carolina.                      After covering his

face with a mask, the robber cocked the revolver in employee

Marian Alston’s face and whispered, “give me all your money.”

Alston complied by taking the robber to an adjacent office and

surrendering approximately $3,000.                     The robber then fled the

scene.       According to Alston, the robber wore white tennis shoes,

jeans,       and   a   blue   shirt     with      a   white   stripe     and    the   word




                                             2
“Nautica” across the chest.                   A few days later, Alston identified

Hinton from a police photo array as the person who robbed her.

      Three   days     after          the     Nationwide           Insurance       robbery,    an

individual wearing a fishing hat and a blue and white striped

shirt entered the offices of Bennett Insurance Services in Rocky

Mount, North Carolina and approached employee Donna Kermon.                                   The

person pulled a mask over his face, brandished a revolver at

Kermon, and demanded money.                   Observing the robbery in progress,

Richard     Bennett,       the        owner        of    Bennett        Insurance     Services,

emerged    from     his        office        and       confronted       the      robber.      The

perpetrator then directed the revolver at Bennett and demanded

money.     Bennett, who had just “exchanged” money, produced a ten

dollar bill from his pocket and handed it to the robber.                                   After

a brief struggle with Bennett over the gun, the perpetrator fled

the premises.        Bennett pursued the robber and observed him in

the     passenger    seat        of     an     older          model     dark-colored       Acura.

Bennett    memorized       a    portion        of       the    license    plate      number   and

later    provided     it       to     the     police.           Several       days   after    the

robbery, as well as at trial, Kermon identified Hinton as the

robber.     At the time of the robbery, Bennett Insurance Services

was regularly engaged in interstate commerce.

      Several hours after the Bennett Insurance robbery, a man

entered     the     Southern          Bank     branch         in      Scotland     Neck,    North

                                                   3
Carolina       and    approached   bank    teller    Marshell    Roberson.      The

robber       presented    a   firearm     and    asked   for   money.      Roberson

reached into her cash drawer and handed the robber approximately

$1,000.        After stuffing the currency in his pants pocket, he

left the bank.           Roberson described the robber as wearing a tan

fisherman’s hat, a blue and white striped shirt, and a black

piece of cloth over his face.                   No bank employee specifically

identified Hinton as the perpetrator.

       Shortly thereafter, law enforcement officers responding to

the Southern Bank robbery observed a black Acura traveling away

from       Scotland   Neck.     Aware     that   a   similar   vehicle    had   been

involved in a robbery earlier that day, the officers attempted

to stop the Acura.            After a six mile high-speed pursuit, the

vehicle eventually crashed into a ditch.                   Hinton was observed

fleeing from the passenger side.                  A brief foot chase ensued,

during which Hinton discarded a revolver.                      He was eventually

apprehended after being shot by a pursuing officer.                     A search of

the Acura revealed a white and blue striped shirt, a fisherman’s

cap, and a black nylon cap. *


       *
       In his testimony, FBI Agent Michael Sutton identified one
of the items recovered from the Acura as a black nylon cap.
Despite the similar description, it is unclear whether this item
was the black piece of cloth covering the Southern Bank robber’s
face, as described by witness Marshell Roberson.


                                           4
       Bennett       was    able    to     identify      the       Acura    from      which    the

defendant fled, the clothing found inside the vehicle, and the

revolver    recovered          along       Hinton’s      path       of    flight,     as    those

involved in the Bennett Insurance robbery.                               A large amount of

U.S. currency was also discovered in Hinton’s pants pocket.

       A grand jury indicted Hinton on two counts of interfering

with   commerce        by    robbery,       18    U.S.C.      §    1951     (Counts      One   and

Three); one count of armed bank robbery, 18 U.S.C. § 2113(a) and

(d), and aiding and abetting the same, 18 U.S.C. § 2 (Count

Five);    and     three       counts       of    using    a       firearm      during    and    in

relation to a crime of violence, 18 U.S.C. § 924(c)(1) (Counts

Two, Four, and Six).            Count Three of the Indictment specifically

alleged    that      the     defendant          “did    unlawfully         take    and     obtain

property    consisting         of     approximately           $10.00      in    United     States

currency,    the       property       of    Bennett       Insurance         Services,      Inc.”

Count Four of the Indictment referred to the predicate crime of

violence     as       a     “robbery        affecting         interstate          commerce     in

violation       of    Title     18,       United       States      Code,       Section     1951,”

involving the Bennett Insurance agency.

       All counts were tried together before a jury beginning on

December    10,       2007.         The    government’s            evidence      in   both     the

Nationwide       and        Bennett       robberies       consisted            principally      of

eyewitness       identification            of     Hinton,         corroborating         physical

                                                 5
evidence, such as clothing, weapon and vehicle, coupled with the

circumstances of his arrest.                     In the Southern Bank robbery, the

government’s      evidence       was        purely        circumstantial       and    focused

mainly    on    the   events      immediately              preceding    the     defendant’s

arrest, along with the clothing, revolver, Acura, time-frame,

and   proximity       to   the    bank.              On    all     counts,     the    defense

challenged      the   adequacy         of    proof        of     identity,    the     lack    of

forensic evidence and bank security camera photographs.                                      The

defense also argued that no witness was able to connect the

clothing seized from the vehicle with the defendant.                                   At the

close of the evidence, the court denied the defendant’s motion

for judgment of acquittal.                  The jury found the defendant guilty

on all counts. This appeal followed.

      With     respect     to    the        Bennett        Insurance        robbery    (Count

Three), a critical issue in dispute was the ownership of the ten

dollars taken from Mr. Bennett.                      The Indictment alleged, and the

prosecution      argued,        that        it    was      the     property     of    Bennett

Insurance Services.             The defense maintained that the evidence

was more consistent with the money being owned personally by

Bennett.       During deliberations, the jury asked for clarification

on this point.         Specifically, the jury asked, “[D]oes the ten

dollars    represent       interstate            commerce      since   it     came    from    an

individual?”      The district court instructed the jury that

                                                 6
     the   government   has    alleged that  .   .   . the
     approximately ten dollars in United States currency,
     was the property of Bennett Insurance Services, Inc.
     Whether they have proved that is your business.   Not
     mine.   You heard the evidence, and so you have to
     decide   beyond   a    reasonable doubt   whether the
     government has proved that.

The district court summarized by stating, “[I]f they have proved

that beyond a reasonable doubt, then it would be your duty to

find the defendant guilty.             If they have failed to prove that

beyond a reasonable doubt, then it would be your duty to find

the defendant not guilty.            Your verdict has to be unanimous.”

The defense offered no objection to any of the jury instructions

given by the court.

     Hinton     raises    three    issues        on    appeal.      First,    Hinton

maintains the government’s identification evidence was legally

insufficient to support his convictions on all counts.                       Second,

Hinton   argues    that    there   was       a   fatal    variance    between      the

property   described      in   Count   Three      of    the   Indictment     and   the

evidence      presented   at    trial.           Third,    Hinton    contends      the

government’s evidence was legally insufficient to support his

convictions on both Counts Three and Four because the government

failed   to    produce    evidence     that      the     property    taken   in    the

Bennett robbery effected interstate commerce.                    We address each

contention in turn.




                                         7
                                           II.

       In his first assignment of error, Hinton asserts that the

government’s identification evidence is insufficient to sustain

his convictions on all counts.                    In support of this argument,

Hinton    emphasizes        several        purported          deficiencies       in    the

government’s evidence, namely, the lack of forensic evidence,

the government’s failure to show that Hinton wore the clothing

attributed      to    the   robber,     and       the    uncertainty        of   witness

identification testimony.

       When a defendant asserts a claim of insufficient evidence,

the “verdict of a jury must be sustained if there is substantial

evidence, taking the view most favorable to the Government, to

support it.”         Glasser v. United States, 315 U.S. 60, 80 (1942).

Substantial evidence is “evidence that a reasonable finder of

fact    could   accept      as    adequate       and    sufficient     to     support     a

conclusion of a defendant’s guilt beyond a reasonable doubt.”

United   States      v.   Alerre,    430     F.3d      681,    693   (4th    Cir.     2005)

(quoting United States v. Burgos, 94 F.3d 849, 862 (4th Cir.

1976)    (en    banc)).          “Reversal       for    insufficient        evidence    is

reserved for the rare case ‘where the prosecution’s failure is

clear.’” United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir.

1997) (citing Burks v. United States, 437 U.S. 1, 17 (1978)).




                                             8
      In    weighing        identification        evidence,     “it     is        well

established at common law, with exceptions not here pertinent,

that ordinarily the testimony of one eyewitness is sufficient

for   the   purpose    of    identification       of   the    perpetrator     of     a

crime.”      United States v. Levi, 405 F.2d 380, 382 (4th Cir.

1968).      When reviewing a sufficiency of evidence claim, this

Court “must consider circumstantial as well as direct evidence,

and   allow    the     government      the     benefit   of     all    reasonable

inferences from the facts proven . . . .”                     United States v.

Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).

      With these standards in mind, we have reviewed the record

and conclude that the government’s identification evidence was

sufficient     to    support    Hinton’s       conviction.       The    issue       of

criminal agency was one of fact for the jury to resolve.                          With

respect to the       Nationwide and Bennett robberies, the jury heard

testimony     from   Alston    and    Kermon    identifying      Hinton      as    the

robber.     Moreover, the money found on Hinton and the clothing

discovered in the Acura, which was consistent with that worn in

the Bennett and Southern Bank robberies, further supports the

jury’s identification of Hinton as the perpetrator of all three

robberies.     Obviously, the jury chose to credit this testimony.

For   these    reasons,      the     collective     evidence     is    more       than

sufficient to implicate Hinton in all three robberies.

                                         9
      Next, the defendant challenges his conviction based on a

fatal variance of proof.                Hinton claims that a fatal variance

existed between the allegations in Count Three of the Indictment

and the evidence produced at trial to support this charge.                                  In

particular, Hinton argues that the government failed to present

evidence that the property taken in the robbery alleged in Count

Three was actually the property of Bennett Insurance Services,

as   distinguished       from    the    individual      Richard      Bennett.          As   a

result,    Hinton      maintains        that    he   was     surprised      by   what       he

characterizes       as    an    unexpected       change      in   the     prosecution’s

theory    of    proof,    and    consequently,         was    unable      to   prepare      a

proper defense on Counts Three and Four.                     He urges this Court to

set aside his convictions on these counts.

      “When the government, through its presentation of evidence

and/or    its    argument,        or     the    district       court,      through      its

instructions      to     the    jury,    or    both,    broadens         the   bases    for

conviction       beyond        those     charged       in     the        indictment,         a

constructive      amendment--sometimes               referred       to    as     a   fatal

variance--occurs.”         United States v. Randall, 171 F.3d 195, 203

(4th Cir. 1999).          “A constructive amendment is a fatal variance

because the indictment is altered ‘to change the elements of the

offense charged, such that the defendant is actually convicted

of a crime other than that charged in the indictment.’”                                 Id.

                                           10
(quoting United States v. Schnabel, 939 F.2d 197, 203 (4th Cir.

1991)).      “Thus,        a   constructive         amendment       violates       the    Fifth

Amendment right to be indicted by a grand jury, is error per se,

and must be corrected on appeal even when the defendant did not

preserve the issue by objection.”                   Id.

     “However, not all differences between an indictment and the

proof     offered     at       trial,    rise       to    the     ‘fatal’      level      of     a

constructive amendment.”                Id.        “As long as the proof at trial

does not add anything new or constitute a broadening of the

charges,     then     minor       discrepancies           between        the     Government’s

charges     and      the       facts      proved          at    trial      generally           are

permissible.”        United States v. Fletcher, 74 F.3d 49, 53 (4th

Cir. 1996).

     For clarity’s sake, we must point out that where the
     government’s presentation at trial does not broaden
     the legal bases for conviction by allowing the jury to
     consider a different or less specific offense, but
     instead fails to establish as fact an essential
     element of the indicted offense, the proper challenge
     on appeal is to the sufficiency of the evidence.

United    States     v.    Floresca,          38   F.3d    706,    710    n.10     (4th    Cir.

1994).

     In light of the evidence presented at trial and the court’s

instruction to the jury, Hinton’s fatal variance argument is

without    merit.          First,       Hinton’s         argument    misinterprets             the

government’s        evidence.           Hinton       claims       that     the    government


                                               11
attempted to prove the currency taken from Richard Bennett was

his own personal money and not that of Bennett Insurance.                                      To

the contrary, he described the ten dollars taken in the robbery

as “exchanged” currency.                 Although Bennett never explained the

meaning of “exchanged,” the jury, as trier of fact, could, and

did, logically conclude that the money was a business asset.

There is no indication from the evidence that the prosecution

theory deviated from the allegation in the Indictment that the

currency      taken     in    the       robbery     was      anything        other    than    the

property of Bennett Insurance.                      Consequently, the defendant’s

argument is more appropriately viewed as a failure to prove an

element rather than a constructive amendment to the Indictment.

See Floresca, 38 F.3d at 710 n.10.

        Hinton’s related argument that he was not given adequate

notice of the government’s revised theory of money ownership,

and     was    unable    to       prepare       a    defense         which     stressed       the

connection between the money and interstate commerce, is equally

unpersuasive.         Given the trial judge’s response to the jury’s

specific      question       on   this      issue,      it     is    difficult       to    fathom

counsel’s      confusion      on     this      point.     The       nature    of     the   charge

alone    provided       ample       notification          to    Hinton       that     a    proper

defense       would   focus        on    the      connection         between       the     money,

regardless of the owner, and interstate commerce.                                    Therefore,



                                               12
Hinton cannot claim his defense was prejudiced, and his second

ground for appeal fails.

         Finally, Hinton contends that the evidence on Counts Three

and Four, which charged violations of the Hobbs Act (robbery of

Bennett     Insurance      Services)       and    use        of    a     firearm        in    the

commission of a crime of violence, respectively, failed to prove

the essential element of “effect on interstate commerce.”                                      18

U.S.C. § 1951.         Hinton maintains that because a conviction on

Count Three (the Bennett robbery) is a necessary prerequisite to

a conviction on Count Four (the firearm charge) both must be set

aside.     This Court disagrees with both the defendant’s logic and

analysis of the evidence.

      Title 18 U.S.C. § 1951, commonly known as the Hobbs Act,

prohibits      robbery    or     extortion       that       “in    any       way   or    degree

obstructs, delays, or affects commerce or the movement of any

article or commodity in commerce.”                      18 U.S.C. § 1951(a).                   “A

Hobbs    Act   violation        requires   proof       of    two       elements:        (1)   the

underlying      robbery    or     extortion      crime,      and       (2)    an   effect      on

interstate commerce.”            United States v. Williams, 342 F.3d 350,

353 (4th Cir. 2003).             Congress has made clear that it intended

to   exercise    the     full    extent    of    its    constitutional             power      “to

punish     interference         with   interstate           commerce         by    extortion,

robbery, or physical violence.”                   Id. at 354.                The Hobbs Act

“outlaws such interference ‘in any way or degree.’”                                Stirone v.

                                           13
United States, 361 U.S. 212, 215 (1960) (citing 18 U.S.C. §

1951(a)).          Therefore, the Fourth Circuit has “found the Hobbs

Act    to    apply       whenever    the        instant     offense         has     at    least    a

‘minimal’ effect on interstate commerce.”                            Williams, 342 F.3d at

354 (citing United States v. Spagnolo, 546 F.2d 1117, 1119 (4th

Cir. 1976)).

        To   qualify       as    having     a    “minimal        effect”       on       interstate

commerce, the Hobbs Act “does not require proof that a defendant

intended to affect commerce or that the effect on commerce was

certain;     it     is    enough    that        such   an   effect       was      the     natural,

probable consequence of the defendant’s actions.”                                 Id.    Commerce

has been considered “sufficiently affected under the Hobbs Act

where    a   robbery       depletes       the     assets        of   a   business         that    is

engaged      in    interstate       commerce.”            Id.        This    “jurisdictional

predicate may be satisfied though the impact upon commerce is

small, and it may be shown by proof of probabilities without

evidence          that     any     particular          commercial           movements        were

affected.”         United States v. Brantley, 777 F.2d 159, 162 (4th

Cir. 1985).

        Based on the deference we must give to the government’s

evidence      and        the     “minimal       effect”      on       interstate         commerce

required, we find the evidence more than sufficient to support

the jury’s verdict on Count Three.                          The evidence demonstrated

that     Bennett         Insurance     Services           transacted          business        with

                                                 14
customers     in   a     number   of    states.     Mr.        Bennett,     the    owner,

testified that the currency removed from his pocket and taken in

the robbery had just been “exchanged.”                   In the context of the

evidence, it was logical to conclude, as the jury did, that the

exchange     at    issue    involved     business    assets.          Proof       of    the

required interstate nexus was more than adequate to satisfy the

jurisdictional predicate.              We find that “a reasonable finder of

fact could accept [this evidence] as adequate and sufficient to

support a conclusion of a defendant’s guilt beyond a reasonable

doubt.”     Alerre, 430 F.3d at 693.

       Accordingly, we find “there is substantial evidence, taking

the view most favorable to the Government,” to support Hinton’s

conviction on Count Three.              Glasser, 315 U.S. at 80.              While we

do    not   believe    that    Hinton’s       conviction       on   Count   Four       (the

firearm charge) is necessarily linked to proof of Count Three,

the   evidence     was     sufficient    to    support     a    conviction        on   that

count as well.

        Based on the aforementioned reasons, we affirm Hinton’s

convictions and sentence.              Furthermore, we deny Hinton’s motion

for leave to file a pro se supplemental brief challenging his

sentence on various other grounds.

                                                                              AFFIRMED




                                          15
