                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS          April 20, 2004

                         FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                   Clerk


                             No. 03-50462



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

                                versus

DONTE CHAVFUL,

                                             Defendant - Appellant.



            Appeal from the United States District Court
                  for the Western District of Texas


                             ( 01-CR-412 )

Before GARWOOD, HIGGINBOTHAM, and SMITH, Circuit Judges.

PER CURIAM:*

     Donte Chavful appeals his jury trial convictions for two

counts of conspiring and attempting to obstruct, delay, and affect

commerce by robbery in violation of the Hobbs Act,1 and for one

count of using or carrying a firearm during a crime of violence in

violation of 18 U.S.C. § 924(c).       Chavful contends that (1) the

evidence was insufficient to support his Hobbs Act convictions, (2)

     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
     1
         18 U.S.C. § 1951(a) (2000).
the district court allowed the indictment to be constructively

amended, and (3) the district court abused its discretion by

excluding evidence of his prior state court acquittal, and by

admitting a letter indicating his involvement with a gang, expert

testimony   explaining   the    letter,    and   a   handwriting   expert’s

testimony regarding Chavful’s attempt to disguise his writing.           We

AFFIRM.

                                     I

     On August 2, 1994, an airport shuttle driver was shot and

killed during an attempted robbery in San Antonio.           Julius Steen,

a known gang member, was arrested on August 15 for a different

shooting, and admitted during questioning that he took part in the

shuttle driver’s shooting as well.        Steen became an informant for

the state, testifying that he, along with Donte Chavful and Dwayne

Dillard, as members of the same gang, conspired to rob the airport

shuttle driver.      Steen testified that Dillard drove the car,

Chavful shot the driver, and Steen rode in the back seat.            Texas

charged Chavful with murder, but he was acquitted.

     The    United   States    charged    Chavful    with   conspiring   and

attempting to obstruct, delay and affect commerce by robbery of the

airport shuttle in violation of the Hobbs Act.               The Hobbs Act

indictments at issue alleged that Donte Chavful:

            did knowingly and willfully conspire, combine,
            confederate, and agree together with others
            known to the Grand Jury to in any way and
            degree obstruct, delay, and affect commerce


                                     2
           and the movement of any article and commodity
           in commerce, by robbery of the driver of a
           Star Shuttle airport van - an instrumentality
           of commerce, who was then waiting beside the
           Crockett Hotel in San Antonio, Texas, all in
           violation of Title 18, United States Code,
           Section 1951.

     The jury found Chavful guilty of the Hobbs Act charges and of

using or carrying a firearm during a crime of violence.

                                    II

                                    A

     Chavful first asserts that there was insufficient evidence to

convict him of conspiring and attempting to obstruct, delay, or

affect commerce by robbery.    He claims that because the indictment

alleged that he obstructed commerce by robbery of “a van - an

instrumentality   of   commerce,”   the   government   was   specifically

required to prove that the airport shuttle was an instrumentality

of interstate commerce.    Chavful urges that the government failed

to do so, and the district court allowed him to be convicted based

on any effect on interstate commerce was erroneous.

     In reviewing a challenge to the sufficiency of evidence, we

must determine “whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable

doubt.”2



     2
         United States v. Williams, 264 F.3d 561, 576 (5th Cir.
2001).

                                    3
     The two essential elements of a Hobbs Act violation are (1) a

robbery, extortion, or attempted robbery or extortion, and (2) a

resulting    interference       with   commerce.3    Commerce       is   defined

broadly, reaching to its constitutional limit.4             If an indictment

charges nonessential facts, the government is not required to prove

them to obtain and sustain a conviction.5           “[T]he Government need

not prove all facts charged in the indictment as long as it proves

other    facts   charged   in    the   indictment   which    do    satisfy   the

essential elements of the crime.”6

     Given the essential elements of the Hobbs Act violation and

the applicable caselaw, Chavful’s argument fails.                 The Hobbs Act

counts only required the government to prove an attempt and a

conspiracy to affect commerce by robbery.           The indictment charged

that Chavful “did knowingly conspire, combine, confederate, and

agree together with others . . . to in any way and degree obstruct,

delay, and affect commerce and the movement of any article and

commodity in commerce, by robbery of the driver of a Star Shuttle

airport van – an instrumentality of commerce.”              Because an effect



     3
         United States v. Robinson, 119 F.3d 1205, 1212 (5th Cir.
1997).
     4
         Id.; 18 U.S.C. § 1951(b)(3).
     5
       Robinson, 974 F.2d at 578; United States v. Hughes, 766 F.2d
875, 879 (5th Cir. 1985); United States v. England, 480 F.2d 1266,
1269 (5th Cir. 1973).
     6
         England, 480 F.2d at 1269.

                                        4
on an instrumentality of commerce is not an element of a § 1951(a)

violation, the charge in the indictment that the airport shuttle

was   an    instrumentality   of   commerce    was    surplusage.7       The

government’s     evidence   demonstrating     that   various   aspects    of

commerce were affected by the robbery - a contention that Chavful

does not dispute on appeal - was sufficient to allow the jury to

find all essential elements of the Hobbs Act violations beyond a

reasonable doubt.

                                    B

      Chavful next asserts that the indictment was constructively

amended.     He reads the indictment as charging him with affecting

only one particular type of commerce - the airport shuttle.              He

urges that despite this limitation, the jury was allowed to convict

him upon finding that the robbery affected any type of interstate

commerce.     Chavful relies on the rule established by Stirone v.

United States: “when only one particular kind of commerce is

charged to have been burdened[,] a conviction must rest on that

charge and not another.”8

      Once a grand jury returns an indictment, its charges may only

be broadened by the grand jury itself.9        A corollary of this rule



      7
       See Robinson, 974 F.2d at 578; Hughes, 766 F.2d at 879;
England, 480 F.2d at 1269.
      8
          Stirone v. United States, 361 U.S. 212, 218 (1960).
      9
          Id. at 215-16.

                                    5
is that “a court cannot permit a defendant to be tried on charges

that are not made in the indictment against him.”10 “A constructive

amendment to the indictment occurs when the jury is permitted to

convict the defendant on a factual basis that effectively modifies

an essential element of the offense charged in the indictment.”11

An indictment may be constructively amended by evidence offered or

by jury instructions.12   However, “[n]ot every variance between the

indictment’s     allegations     and       proof   at   trial   engenders   a

constructive amendment.        For example, no constructive amendment

arises ‘where the evidence proves facts different from those

alleged in the indictment, but does not modify an essential element

of the charged offense.’”13 If a constructive amendment occurs, the

conviction must generally be reversed.14

     To find a constructive amendment here, the evidence adduced at

trial or the jury instructions must have permitted the jury to

convict Chavful on a factual basis that effectively modified the




     10
          Id. at 217.
     11
          United States v. Millet, 123 F.3d 268, 272 (5th Cir. 1997).
     12
          Id.
     13
       United States v. Munoz, 150 F.3d 401, 417 (5th Cir. 1998)
(quoting United States v. Salvatore, 110 F.3d 1131, 1145 (5th Cir.
1997)) (internal citations omitted).
     14
          United States v. Threadgill, 172 F.3d 357, 370 (5th Cir.
1999).

                                       6
essential    elements   of   the   Hobbs    Act   charges.15   Contrary   to

Chavful’s assertion, the indictment did not charge that only one

particular kind of commerce was affected; instead, it charged that

Chavful did [conspire and attempt to] “in any way and degree

obstruct, delay, and affect commerce and the movement of any

article or commodity in commerce, by robbery of the driver of a

Star Shuttle airport van - an instrumentality of commerce.” Unlike

the indictment in Stirone, which charged that the defendant’s

extortion affected one specific commodity in commerce, Chavful’s

indictment clearly charged that commerce in general was affected by

his robbery of the airport shuttle.           This indictment limits the

government to proving an effect on commerce as a result of the

robbery of the shuttle, and the evidence and jury instructions

stayed true to this limitation.           Accordingly, the latter part of

the Stirone rule applies: “under an indictment drawn in general

terms[,] a conviction might rest upon a showing that commerce of

one kind or another had been burdened.”16          Neither the evidence of

the robbery’s affect on various aspects of interstate commerce nor

the jury instructions constructively amended the indictment.

                                      C

     Finally, Chavful argues that the judge erroneously admitted

into evidence (1) a letter Chavful wrote that demonstrates his


     15
          Millet, 123 F.3d at 272-73.
     16
          Stirone, 361 U.S. at 218.

                                      7
affiliation with a gang and refers to the people involved in the

conspiracy, (2) an expert’s testimony explaining elements of the

letter, and (3) a handwriting expert’s testimony that Chavful

disguised his handwriting in samples given to the FBI.                        Chavful

asserts that this evidence was irrelevant, and assuming relevancy,

was unfairly prejudicial. Chavful also asserts that the Judge erred

in   refusing     to    admit   evidence       of   his   prior    state   acquittal.

Considering the charges, Chavful’s assertions at trial, and the

nature of the evidence admitted, there is no reversible error.

      We review evidentiary rulings under a deferential standard.17

Reversal is warranted only when the admission constituted an abuse

of discretion.18        Evidence is relevant if it has “any tendency to

make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it

would be without the evidence.”19              Otherwise relevant evidence “may

be excluded if its probative value is substantially outweighed by

the danger       of    unfair   prejudice,       confusion    of    the    issues,   or

misleading the jury.”20         The trial judge has broad discretion over

determinations of relevance under Federal Rule of Evidence 401 and




      17
           United States v. Elwood, 999 F.2d 814, 816 (5th Cir. 1993).
      18
           Id.
      19
           FED. R. EVID. 401.
      20
           FED. R. EVID. 403.

                                           8
unfair prejudice or confusion under Federal Rule of Evidence 403.21

      The gang letter was probative of Chavful’s association with

other members of the conspiracy. It also served to rebut Chavful’s

attempt to distance himself from the gang and the other members of

the conspiracy.        Chavful asserts that the letter’s admission was

unfairly     prejudicial     because    the       letter   includes    violent   and

obscene language, racial slurs, and threats. While the language of

the   letter   was     prejudicial     to       Chavful,   it   was   not   unfairly

prejudicial.        Chavful does not dispute that he wrote the letter,

and the letter clearly serves to associate him with the gang and

other members of the conspiracy.                Finally, the district court gave

extensive limiting instructions to the jury, explaining that gang

membership was not inherently bad and that gang membership was not

an issue in the case.        The highly probative value of the evidence,

coupled with the judge’s limiting instructions, belies Chavful’s

assertion that the evidence’s relevance is substantially outweighed

by its unfair prejudice.        Under these circumstances, the court did

not abuse its discretion.

      Second, Chavful asserts that the gang expert’s testimony was

irrelevant because the letter itself was irrelevant. This argument

fails for the reasons above.            Furthermore, the letter included

various     slang    terms   that    would        be   meaningless    without    the



      21
           United States v. Madera, 574 F.2d 1320, 1322 (5th Cir.
1978).

                                            9
assistance of an expert’s explanation. The judge did not abuse his

discretion by admitting the testimony; its relevance was not

substantially outweighed by the danger of unfair prejudice.

      Third, Chavful contests the admission of the handwriting

expert’s     testimony    regarding      his     attempt      to   disguise    his

handwriting.    He claims that because there was no dispute that he

wrote the letter, the expert’s testimony was irrelevant and was

included only to inflame the jury.             However, under our caselaw, a

jury may consider attempted disguise as demonstrating a defendant’s

consciousness    of    guilt.22      Chavful     does   not    respond   to    this

authority.      Even assuming that the district court abused its

discretion by admitting the testimony, any error would be harmless.

The   government      presented     a   significant      amount     of   evidence

demonstrating    Chavful’s        involvement     in    the   robbery    and    his

association with the coconspirators.

      Finally, Chavful argues that the court erred in excluding

evidence of his prior acquittal.             Based on the following evidence

and events put before the jury, he asserts that his presumption of

innocence was improperly eroded:                (1) two jurors saw him in

handcuffs; (2) during his testimony, Steen referred to an event

that occurred “after Chavful’s trial,” which Chavful views as

implying that he was tried and convicted in state court; (3) the


      22
       See United States v. Stembridge, 477 F.2d 874, 876 (5th Cir.
1973); see also United States v. Jacobowitz, 877 F.2d 162, 169 (2d
Cir. 1989).

                                        10
person who obtained the gang letter testified that she got it from

an inmate who had received it from Chavful, which Chavful views as

implying his incarceration from a conviction; and (4) a sheriff

testified that Chavful had a visitation list at the prison.

     His argument is without merit.        It is axiomatic that a

criminal defendant has a constitutional right to a presumption of

innocence.23    The Court has left trial judges to determine what

evidence and procedures may erode the presumption “based on reason,

principle, and common human experience.”24    Courts have found the

presumption impermissibly eroded by requiring a defendant to wear

prison attire throughout the trial.25    However, the nature of the

evidence at issue here did not rebut the presumption of innocence.

     Contrary to Chavful’s assertion, the court did not abuse its

discretion by refusing to admit evidence of Chavful’s acquittal

because the evidence at issue did not rebut the presumption of

innocense.     As we explained in United States v. De La Rosa, “as a

general matter, a trial court does not abuse its discretion in

excluding evidence of a prior acquittal on a related charge.”26   We

noted that evidence of acquittal is irrelevant to the defendant’s



     23
          See Estelle v. Williams, 425 U.S. 501, 503-04 (1976).
     24
          Id. at 504.
     25
          Id. at 504-505, 512-13.
     26
          United States v. De La Rosa, 171 F.3d 215, 219 (5th Cir.
1999).

                                    11
innocence,    is    unexempted    hearsay,   and   any   relevance    may   be

outweighed by the danger of unfair prejudice and jury confusion.27

Chavful does not cite any authority explaining why De La Rosa’s

general    rule    should   not   control.    Moreover,    other     evidence

illustrates that any burden on Chavful’s presumption of innocence

must have been neutralized.          Evidence before the jury clearly

showed that Chavful must have been acquitted in state court.

Namely, there was evidence that he was visiting people outside of

jail between the crime at issue and the federal trial; the only

implication is that if they knew a state trial occurred, Chavful

must have been acquitted.

                                     III

     For these reasons, Chavful’s convictions are AFFIRMED.




     27
          Id. at 219-20.

                                      12
