                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4794


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TIMOTHY JAMES DONAHUE,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:12-cr-00013-MOC-DCK-3)


Submitted:   March 23, 2015                 Decided:   April 8, 2015


Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


David G. Belser, BELSER & PARKE, Asheville, North Carolina, for
Appellant. Anne M. Tompkins, United States Attorney, William M.
Miller, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Following a jury trial, Timothy James Donahue was convicted

on   one    count      of    conspiracy     to    commit   Hobbs     Act   robbery,   in

violation of 18 U.S.C. § 1951(a) (2012), and one count of Hobbs

Act robbery, and aiding and abetting, in violation of 18 U.S.C.

§§ 1951(a), (2) (2012).              The district court sentenced Donahue to

concurrent 188-month prison terms.                  Donahue timely appeals.

      Viewed in the light most favorable to the Government, the

evidence presented at trial “supports the following narrative.”

United States v. Reed, ___ F.3d ___, ___, 2015 WL 1037601, at *1

(4th Cir. Mar. 11, 2015).                  Scott Beaver owned Beaver Honda and

Salvage, a business that sold cars and used auto parts all over

the United States and beyond.                     The Beaver family home and the

business shared a single address.                   On one side of the road were

the house and the car lot, separated by a fence.                              Directly

across the road were the salvage yard and garage.                             Beaver’s

wife,      who   also       worked   for    the    business,    sometimes     prepared

paperwork        and    conducted     telephone       sales    and    purchases   from

inside the house.

      Instead of putting his money in a bank, Beaver chose to

keep it in a safe in his laundry room.                        In the evening after

work, Beaver would bring the proceeds from the business into the

house for storage in the safe.                     He estimated that he had $1.5

million in the safe.             He kept the cash from his business in the

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safe in part because he felt like it was safer there than stored

in a bank or invested, and in part for convenience because he

used    it   “for    transactions.”           Although     the   business    had    a

checking account, occasionally Beaver would retrieve cash from

inside the house to pay people who performed work for him.

       Donahue met Beaver when Donahue was employed by Eric Wilson

in   Wilson’s   automobile       glass    business.         Wilson   and    Donahue

performed     work    for     Beaver,    exchanging      glass    windshields      at

Beaver’s car lot.           Donahue knew that Beaver kept cash from the

business inside his house.          Wilson preferred being paid in cash,

and often he and Donahue waited in the house or on the front

porch as Beaver retrieved money to pay them for their windshield

work.    Sometimes, when the two men waited in the living room,

Beaver headed towards the laundry room, returning with their

cash.    Donahue and Wilson occasionally discussed that Beaver was

worth several million dollars, and Donahue remarked “quite a few

times” about how much money Beaver kept in the safe.

       Donahue conspired with others to rob Beaver’s safe.                         The

robbery was carried out on July 21, 2011, by two of the co-

conspirators.        The robbers forced Beaver, his wife, their two

young    daughters,          Beaver’s    adult       grandson,     and      Beaver’s

preschool-age        great    grandson,       into   the    Beavers’     home   and

demanded that Beaver show them the safe.                    After Beaver opened

the safe, the robbers took the cash; it took several trips to

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carry it all to their vehicle.                           They began counting the money

after they left the scene, but they stopped counting after $1.5

million.        The       funds        were    subsequently              divided      amongst     the

coconspirators.

       Donahue first argues on appeal that the Government failed

to   establish        a    sufficient          nexus          to    interstate        commerce      to

support       his     convictions.                   A        defendant        challenging         the

sufficiency     of        the       evidence    faces         “a    heavy      burden.”         United

States v. McLean, 715 F.3d 129, 137 (4th Cir. 2013) (internal

quotation marks omitted).                     The jury verdict must be sustained

if, viewed in the light most favorable to the Government, there

is     substantial         evidence           in        the        record      to     support     the

convictions.         Glasser v. United States, 315 U.S. 60, 80 (1942);

United      States    v.     Jaensch,         665       F.3d       83,   93    (4th      Cir.   2011).

“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.”

Jaensch, 665 F.3d at 93 (internal quotation marks and brackets

omitted).       “Reversal for insufficient evidence is reserved for

the rare case where the prosecution’s failure is clear.”                                        United

States v. Ashley, 606 F.3d 135, 138 (4th Cir. 2010) (internal

quotation marks omitted).

       To    establish          a    Hobbs     Act       robbery,        the    Government       must

prove:

                                                    4
       (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.

Reed, ___ F.3d at ___, 2015 WL 1037601, at *8 (quotation marks

and citation omitted).              Conspiracy to commit Hobbs Act robbery

requires the Government to prove that the defendant agreed with

at least one other person to commit acts that would satisfy the

above three elements.              United States v. Buffey, 899 F.2d 1402,

1403 (4th Cir. 1990).                Donahue argues that the evidence was

insufficient to prove the interstate commerce element of his

convictions, because the money seized during the robbery had

become Beaver’s private funds for which there was no interstate

nexus.

       The jurisdictional element of the Hobbs Act requires the

Government to prove merely a de minimis effect on interstate

commerce.          United    States       v.   Taylor,   754    F.3d     217,    222    (4th

Cir.), pet. for cert. docketed, (U.S. Sept. 9, 2014) (No. 14-

6166).    The fact that a robbery occurred in a private residence

does   not    necessarily          defeat      the   interstate     nexus       where   the

Government     shows        that    the    robbery     depleted     or    attempted      to

deplete      the    assets     of     a    business      that    affects        interstate

commerce or by showing that the defendant deliberately targeted

a business engaged in interstate commerce.                      Id. at 223-26.


                                               5
       In United States v. Powell, 693 F.3d 398 (3d Cir. 2012),

Powell and his accomplices robbed Asian business owners at their

homes,    deliberately           targeting       these     victims      based     on    the

robbers’ belief that these individuals did not use banks.                               Id.

at 399.        Powell challenged his Hobbs Act convictions, arguing

that   the     robbery      of    a    private     residence,      as   opposed        to   a

business establishment, was insufficient to establish that the

robbery affected interstate commerce.                      Id. at 402.          The Third

Circuit rejected this argument, holding that where a defendant

targets a home to steal proceeds from a business that engages in

interstate commerce, “such targeting satisfies the Hobbs Act’s

jurisdictional nexus.”                Id. at 403; accord Taylor, 754 F.3d at

225 (holding that “evidence of the defendant’s intent is not

required to prove that his robberies had an impact on interstate

commerce, . . . [but] . . . is still probative . . . of whether

his    actions      would     have     had   the    ‘natural      consequence[]’            of

affecting such commerce” (last alteration in original)).

       Here,    Donahue      does      not   dispute       that   Beaver    Honda       and

Salvage      was    engaged      in    interstate        commerce.       The     evidence

presented      at   trial     showed     that    Donahue     deliberately        targeted

Beaver because he knew that Beaver kept the proceeds from his

business in a safe in his home.                  Donahue contends, however, that

the proceeds were no longer receipts of the business because

they had become Beaver’s personal savings.                        He argues that the

                                             6
money   used    to    operate        the    business        came     from      its    checking

account.      However, Donahue overlooks the evidence presented at

trial that Beaver occasionally paid those who performed work for

his business with cash retrieved from the safe.                                   We conclude

that the evidence was sufficient to satisfy the jurisdictional

element of the Hobbs Act.

      Donahue    also       argues    that       the   district       court         abused    its

discretion by declining his request to instruct the jury that

interstate      commerce      may     not    be    involved          where     the       robbery

depletes the assets of an individual rather than a business.                                  We

review for abuse of discretion the district court’s refusal to

give a particular jury instruction.                      United States v. Shrader,

675 F.3d 300, 308 (4th Cir. 2012).

      The    district       court’s    refusal         to    grant    a     requested        jury

instruction      is     reversible          error       only       if       the      proffered

instruction was “(1) correct; (2) not substantially covered by

the court’s charge; and (3) dealing with some point in the trial

so important, that failure to give the requested instruction

seriously      impaired      the     defendant’s            ability       to   conduct        his

defense.”      Id.    When jury instructions are challenged on appeal,

the   issue    is    whether       “the     instructions,          taken       as    a    whole,

adequately state the controlling law.”                       United States v. Bolden,

325   F.3d    471,    486    (4th    Cir.    2003)      (internal         quotation        marks

omitted).      We have thoroughly reviewed the record and conclude

                                             7
that    the   district     court   did       not   abuse   its   discretion     in

declining to give Donahue’s proposed instruction.

       Accordingly, we affirm the judgment of the district court.

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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