                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-16-2007

USA v. Austin
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1919




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                                                                 NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               _______________

                                     No: 06-1919
                                   _______________

                           UNITED STATES OF AMERICA

                                            v.

                                  GEORGE AUSTIN,

                                          Appellant
                                   _______________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                               (D.C. No. 05-cr-00280-1)
                    District Judge: Honorable Eduardo C. Robreno
                                  _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 11, 2007

            Before: RENDELL, JORDAN and ALDISERT, Circuit Judges

                                  (Filed May 16, 2007)

                                   _______________

                              OPINION OF THE COURT
                                  _______________

JORDAN, Circuit Judge.

      George Austin appeals from his conviction of one count of conspiracy to commit

Hobbs Act robbery in violation of 18 U.S.C. § 1951(a)(1); twelve counts of Hobbs Act

robbery in violation of 18 U.S.C. § 1951(a)(1); and twelve counts of carrying and using a
firearm during and in relation to a crime of violence in violation of 18 U.S.C. §

924(c)(1)(C)(I). He asserts that there was not sufficient evidence to prove beyond a

reasonable doubt that his actions during the course of the robberies had an effect on

interstate commerce, as required by the Hobbs Act. The District Court had jurisdiction

pursuant to 18 U.S.C. § 3231. We exercise appellate jurisdiction under 28 U.S.C. § 1291.

For the reasons set forth below, we will affirm.

                                             I.

       From January 10, 2005, to February 9, 2005, Austin, with three other men,

committed a series of armed robberies in Philadelphia, Pennsylvania. Those business

establishments included small grocery stores in residential neighborhoods, convenience

stores such as Sunoco A-Plus markets and 7-Eleven, and Dunkin’ Donuts.

       At trial, the business owners and employees testified that Austin stole money from

the registers. In addition, owners and employees testified about the types of products they

sold. All the corner grocery stores sold major brands of cigarettes and Canada Dry

beverages. A wholesale distributor for the major cigarette companies stated that all

cigarettes for the major brands are manufactured outside of Pennsylvania. A Canada-Dry

employee testified that Canada Dry services several of the victimized corner grocery

stores and that all the beverage products it provides are manufactured in New Jersey. A

Dunkin’ Donuts employee testified that the products sold at his shop are from New

Jersey. An employee for a grocery distribution company stated that the goods it provides

to the victimized Sunoco A-Plus markets and the 7-Eleven are shipped from either

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Virginia or New York. A jury concluded beyond a reasonable doubt that Austin’s actions

affected interstate commerce. Austin now argues on appeal that the government failed to

sufficiently establish that the robberies had a negative impact on commerce because “[n]o

owner or employer of any of the stores testified that their business was [a]ffected in any

manner at all.”

                                             II.

          We apply a deferential standard of review to determine whether there is legally

sufficient evidence to support a jury verdict. United States v. Dent, 149 F.3d 180, 187 (3d

Cir. 1998). We do not weigh the evidence or determine the credibility of the witnesses;

rather, we view the evidence in the light most favorable to the government and sustain the

verdict if “any trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Id. (quoting United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir.

1996)).

       18 U.S.C. § 1951(a) provides:

       Whoever in any way or degree obstructs, delays, or affects commerce or the
       movement of any article or commodity in commerce, by robbery or
       extortion or attempts or conspires so to do, or commits or threatens physical
       violence to any person or property in furtherance of a plan or purpose to do
       anything in violation of this section shall be fined under this title or
       imprisoned not more than twenty years, or both.

To sustain a conviction for robbery under the Hobbs Act, the government must prove that

the robbery interfered with interstate commerce. United States v. Haywood, 363 F.3d

200, 209 (3d Cir. 2004). See also Stirone v. United States, 361 U.S. 212, 218 (1960)


                                              3
(“The charge that interstate commerce is affected is critical since the Federal

Government’s jurisdiction of this crime rests only on that interference.”) However, if a

defendant’s conduct “produces any interference with or effect upon interstate commerce,

whether slight, subtle or even potential, it is sufficient to uphold a prosecution under [§

1951].” United States. v. Urban, 404 F.3d 754, 764 (3d Cir. 2005) (quoting Haywood,

363 F.3d at 209-10). In addition, a jury “may infer that interstate commerce was affected

to some minimal degree from a showing that the business assets were depleted.” Id.

(quoting Haywood, 363 F.3d at 210).

       In Haywood, we concluded that there was sufficient evidence to sustain a

conviction for interference with commerce by robbery where a bar’s assets were depleted

by the robbery, and the bar sold beer that came from outside the Virgin Islands. 363 F.3d

at 210-11. Here, the owners and employees of the victimized establishments all testified

that Austin stole money from their registers, obviously depleting the assets of those

businesses. In addition, there was testimony that the business establishments all sold

products that came across state lines. That evidence was sufficient for a rational trier of

fact to have concluded that the robberies had at least a slight impact on interstate

commerce. It was unnecessary for the owners to directly testify that their businesses were

affected by the robberies, because a jury “may infer that interstate commerce was affected

to some minimal degree from a showing that the business assets were depleted.” Urban,

404 F.3d at 765 (quoting Haywood, 363 F.3d at 210).



                                              4
                                    III.

Accordingly, we will affirm the judgment of conviction for all counts.




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