                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 15-4059


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DESMOND SIMPSON,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Terrence W. Boyle,
District Judge. (7:13-cr-00131-BO-1)


Submitted:   July 25, 2016                 Decided:   August 10, 2016


Before KING, AGEE, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Rudolph A. Ashton, III, DUNN PITTMAN SKINNER & CUSHMAN, PLLC,
New Bern, North Carolina, for Appellant.      Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Laura S. Howard,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     A    federal   grand    jury   indicted       Desmond    Simpson    on    four

counts relating to the robbery of fast food delivery drivers on

April 20 and April 25, 2012:          two counts of Hobbs Act robbery,

in violation of 18 U.S.C. § 1951 (2012), and two counts of using

and carrying a firearm during and in relation to a crime of

violence, in violation of 18 U.S.C. § 924(c) (2012).                    Following

a jury trial, Simpson was convicted of the robbery and firearm

charges pertaining to the April 25 robbery of a Papa John’s

Pizza (“Papa John’s”) delivery driver; he was acquitted of the

charges    pertaining   to   the    April    20    robbery    of   a   China    Wok

delivery    driver.     Simpson     timely        appealed,   challenging       the

denial of his motions for a Franks * hearing, for dismissal of the

indictment, and for judgment of acquittal pursuant to Fed. R.

Crim. P. 29.    For the reasons that follow, we affirm.

     Turning    first   to   the    denial   of     Simpson’s      motion     for   a

Franks hearing, we review the legal determinations underlying a

district court’s denial of a Franks hearing de novo, and its

factual findings for clear error.            United States v. Allen, 631

F.3d 164, 171 (4th Cir. 2011).               A defendant challenging the

validity of a search warrant is entitled to a Franks hearing if

he makes a preliminary showing that:              “(1) the warrant affidavit

     *   Franks v. Delaware, 438 U.S. 154 (1978).



                                      2
contain[s]      a    ‘deliberate      falsehood’       or      statement       made   with

‘reckless disregard for the truth’ and (2) without the allegedly

false    statement,        the    warrant   affidavit         is   not   sufficient     to

support a finding of probable cause.”                    United States v. Fisher,

711 F.3d 460, 468 (4th Cir. 2013) (quoting Franks, 438 U.S. at

155-56).       The defendant’s preliminary “showing ‘must be more

than conclusory’ and should include affidavits or other evidence

to   overcome       the    ‘presumption     of    [the      warrant’s]        validity.’”

United States v. Clenney, 631 F.3d 658, 663 (4th Cir. 2011)

(quoting Franks, 438 U.S. at 171; alteration in original).

       Where   a    defendant      challenges     the     validity       of    a    warrant

based    “on   an    omission,       rather     than     on    a   false      affirmative

statement,” his “burden increases yet more.”                         United States v.

Tate, 524 F.3d 449, 454 (4th Cir. 2008).                       “[M]erely showing an

intentional omission of a fact from a warrant affidavit does not

fulfill    Franks’        requirements.”         Id.   at     455.       Rather,      “[t]o

satisfy the Franks’ intentional or reckless falsity requirement

for an omission, the defendant must show that facts were omitted

‘with the intent to make, or in reckless disregard of whether

they thereby made, the affidavit misleading.’”                             Id. (quoting

United States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990)).

       Here, Simpson alleges that three key pieces of information

were    omitted     from    the    search   warrant      affidavit:           a    physical

description of Simpson that the magistrate judge could compare

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to   witness     and     victim      descriptions         of    the   suspect      in    each

robbery; the fact that the China Wok delivery driver failed to

identify Simpson from the photographic line-up; and the fact

that the fingerprints lifted from a car stolen from the victim

of   a    third,        uncharged      robbery       did        not   match       Simpson’s

fingerprints.            Simpson     argues       that    the     omitted     information

undercuts       the    existence     of   probable        cause,      but    he   does    not

allege,     much        less    establish          that        the    information         was

deliberately          omitted   or    omitted      with    reckless         disregard     for

whether the omissions rendered the affidavit misleading.                                  We

agree    with    the     district     court       that    the    omissions,       at    most,

amounted to negligence, which does not justify a Franks hearing.

Tate, 524 F.3d at 454.             Moreover, we conclude that the omissions

were not material.

      For an omission from a warrant affidavit to be “material”

and therefore justify a Franks hearing, the

      omission must do more than potentially affect the
      probable cause determination: it must be “necessary to
      the finding of probable cause.” . . . For an omission
      to serve as a basis for a hearing under Franks, it
      must be such that its inclusion in the affidavit would
      defeat probable cause. . . . Omitted information that
      is potentially relevant but not dispositive is not
      enough to warrant a Franks hearing.

Colkley, 899 F.2d at 301.             Our review of the record convinces us

that the omitted information would not have defeated probable

cause.    Even if this information had been included, a practical,


                                              4
common sense consideration of the circumstances set out in the

affidavit — particularly Simpson’s connection to the cell phone

used   to    place    the     delivery   orders     preceding   the     robberies    —

created a fair probability that Simpson’s DNA would match that

found on items recovered from the crime scene.                          Illinois v.

Gates, 462 U.S. 213, 238 (1983).               Accordingly, we conclude that

the district court did not err in denying the motion for a

Franks hearing.

       Next,     Simpson      argues   that   the    district     court    erred    by

denying his motion to dismiss the indictment under the Hobbs

Act, 18 U.S.C. § 1951 (2012), for lack of federal jurisdiction,

and that his prosecution violated the Tenth Amendment because it

criminalized a matter reserved to the States.                   In reviewing the

denial      of   a   motion    to   dismiss   an    indictment,    we     review   the

district court’s factual findings for clear error and its legal

conclusions de novo.            United States v. Woolfolk, 399 F.3d 590,

594 (4th Cir. 2005).

       To establish robbery in violation of the Hobbs Act, the

Government must prove:

       (1) that the defendant coerced the victim to part with
       property; (2) that the coercion occurred through the
       wrongful use of actual or threatened force, violence
       or fear or under color of official right; and (3) that
       the coercion occurred in such a way as to affect
       adversely interstate commerce.




                                          5
United States v. Reed, 780 F.3d 260, 271 (4th Cir.) (internal

quotation marks omitted), cert. denied, 136 S. Ct. 112, 113, 167

(2015).         The    jurisdictional    element      of   Hobbs    Act   robbery

requires that the Government merely prove a minimal effect on

interstate commerce.            United States v. Tillery, 702 F.3d 170,

174 (4th Cir. 2012); see Taylor v. United States, 136 S. Ct.

2074, 2079 (2016) (noting that Congress can regulate activities

that “substantially affect interstate commerce in the aggregate,

even    if     their   individual    impact      on   interstate    commerce   is

minimal”).

       Simpson does not dispute that China Wok and Papa John’s are

businesses      engaged    in    interstate   commerce,      but    argues   that,

because no products sold by the restaurants were taken and only

a small amount of money was stolen, the robberies did not affect

interstate commerce.        We disagree.

       Although the delivery drivers were not physically within

their employers’ places of business, they were performing tasks

within the scope of employment when they were robbed, and the

robber stole proceeds of the businesses.                   Furthermore, as the

Government notes, the drivers were targeted because they worked

for    those    businesses.       The   stolen    cash,    albeit    small   sums,

depleted the assets of the restaurants.               Thus, the robberies had

the requisite minimal effect on interstate commerce to establish

federal subject matter jurisdiction.

                                         6
      Relying on Bond v. United States, 134 S. Ct. 2077 (2014),

Simpson       also     asserts    that     his     federal     prosecution        for   the

robberies violated the Tenth Amendment by criminalizing matters

reserved to the States.              In Bond, the Supreme Court held that

the Chemical Weapons Convention Implementation Act (“CWCIA”) did

not reach the purely local crime of simple assault.                         The Supreme

Court     stated       that,     “[b]ecause        our   constitutional       structure

leaves local criminal activity primarily to the States,” courts

“generally decline[] to read federal law as intruding on that

responsibility, unless Congress has clearly indicated that the

law should have such reach.”               Id. at 2083.

      Unlike the CWCIA, the Hobbs Act “manifest[s] a purpose to

use     all    the     constitutional         power      Congress     has    to     punish

interference with interstate commerce by extortion, robbery or

physical violence.”            Stirone v. United States, 361 U.S. 212, 215

(1960);       see    United    States    v.    Culbert,       435   U.S.    371,    379-80

(1978) (discussing Hobbs Act and noting that although already

punishable under state law, “Congress apparently believed . . .

that the States had not been effectively prosecuting robbery and

extortion      affecting       interstate         commerce    and   that    the    Federal

Government had an obligation to do so”).                       We conclude that the

district       court    did    not   err      in    denying    Simpson’s     motion      to

dismiss the indictment.



                                              7
     Finally, Simpson argues that the district court erred by

denying    his     Fed.   R.   Crim.       P.       29   motion,    claiming      that   the

evidence     was    insufficient           to       show    the    robberies       affected

interstate    commerce.         His    argument            is   identical   to     the    one

pertaining    to    his   motion      to    dismiss         and    fails   for    the    same

reasons.

     Accordingly, we affirm the criminal judgment.                              We dispense

with oral argument because the facts and legal contentions are

adequately    presented        in   the     materials           before   this    court   and

argument would not aid the decisional process.

                                                                                   AFFIRMED




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