United States Court of Appeals For the First Circuit

No. 00-1940

UNITED STATES OF AMERICA,

Appellee,

v.

KIEU MINH NGUYEN,

Defendant, Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Selya, Stahl, and Lynch, Circuit Judges.

Peter E. Rodway, Rodway & Horodyski, James R. Van Camp, and Van Camp, Hayes & Meacham, P.A., on brief for appellant. Margaret D. McGaughey, Assistant United States Attorney, and Jay P. McCloskey, United States Attorney, on brief for appellee. April 17, 2001

LYNCH, Circuit Judge. Kieu Minh Nguyen was convicted

of violating the Hobbs Act,

, by conspiring to

obstruct commerce by means of robbery, as well as by aiding

and abetting that crime.1 He appeals his conviction and

sentence of 109 months imprisonment. We affirm.

I. Background

We review the evidence in the light most favorable

to the verdict.

Between February and May 1998, Nguyen worked for

Nail Time, a nail salon in Portland, Maine. While employed

there, he lived at the home of the shop's owner, Monica Tran.

Nail Time was strictly a cash business with gross

receipts of $800 to $1,000 a day. The shop was small, such

that at the end of every workday employees could see Monica

put the day's receipts into a purse and walk home with it.

Moreover, because Nguyen was living at Monica's apartment, he

1 Nguyen was acquitted on a second count charging that he had used and carried a firearm in relation to a crime of violence in violation of

(c).

-2- was able to see Monica store the purse in a closet when she

arrived home.

Eventually, personal problems developed between

Monica and Nguyen, resulting in the termination of his

employment at Nail Time. Nguyen then moved to North Carolina.

In June 1998, Nguyen had a group of people stay at

his home for several nights; among them were four individuals,

named Cong, Thong, Nam, and Quyen. Nguyen told the group

about Monica and how she kept her business earnings in a black

bag stored in her apartment closet. Nguyen recruited the four

to go to Maine and steal the contents of the bag. He had

someone give the group directions to Monica's apartment and

gave Nam a key to the front door of the apartment building.

Nguyen also gave the group $300 to cover traveling expenses.

During this planning period, Nguyen observed Cong with a

handgun.

On June 23, 1998, the four men sent by Nguyen burst

into Monica's apartment; one of them, Cong, was armed. The

four bound and gagged Monica's two young daughters, who were

alone inside, and ransacked the apartment in search of the

black bag containing the earnings of Nail Time. Unable to

-3- find the bag, the robbers left with personal belongings -- a

stereo and some jewelry. The four returned to North Carolina

within several days of the robbery and stayed overnight with

Nguyen.

II. Sufficiency of the Evidence

Nguyen argues that the evidence at trial was

insufficient to support a Hobbs Act conviction in two

respects. First, he argues that there was insufficient

evidence of any interstate commerce nexus. Second, he argues

that there was insufficient evidence that he conspired to

commit robbery, as opposed to the lesser offense of theft.

A. Commerce

The Hobbs Act prohibits robbery or conspiracy to rob

where such crime "in any way or degree, obstructs, delays, or

affects commerce."

(a). Nguyen concedes, as

he must, that if a robbery even minimally depletes the assets

of an entity doing business in interstate commerce, like Nail

Time,2 then that suffices to meet the Hobbs Act's interstate

commerce element. See, e.g., United States v. DiGregorio, 605

2 The evidence showed that Nail Time ordered a substantial proportion of its products from out of state.

-4- F.2d 1184, 1190-91 (1st Cir. 1979). But he makes two attempts

to distinguish that principle from this case.

First, he argues that, although the conspirators had

hoped to steal the earnings of Nail Time stored in Monica's

purse, the only articles they actually stole were a stereo and

jewelry. But this distinction is of no avail in the context

of a conspiracy charge. All that matters is that Nguyen

entered a conspiracy whose objective was to steal the assets

of an entity in interstate commerce. That the conspiracy

failed to accomplish such objective is irrelevant. E.g.,

United States v. DiCarlantonio,

(6th Cir.

1989); United States v. Brantley,

(4th Cir.

1985).

Second, Nguyen argues that the conspirators did not

necessarily know whether the money in the black bag they

planned to steal constituted Nail Time's operating cash (used

by the business to purchase items in interstate commerce) or

merely Monica's take-home profits. But the interstate

commerce element does not turn on such accounting niceties.

Cf., e.g., United States v. Devin,

(1st

Cir. 1990) (considering it inconsequential, in Hobbs Act

-5- extortion case, that extorted funds came from business owner's

personal funds rather than from corporate funds, because jury

could infer that depletion of former ultimately effects a

depletion of latter) (citing DiGregorio, 605 F.2d at 1191-92).

The evidence need only support a "realistic probability" that

the contemplated robbery would have "some slight impact" on

interstate commerce. Id. at 293. Such probability is easily

established here, as the evidence clearly shows that the

conspirators planned to steal the earnings of a business in

interstate commerce. Proof beyond that, e.g., that the

precise funds stolen were certain to be used in future

business purchases, is not required.

B. Robbery

As defined in the Hobbs Act, "[t]he term 'robbery'

means the unlawful taking or obtaining of personal property .

. . in the presence of another, against his will, by means of

actual or threatened force, or violence, or fear of injury."

(b)(1). Nguyen does not contest that his co-

conspirators committed robbery. Rather, he argues that it was

not foreseeable to him that they would commit robbery as

opposed to simple theft. But the evidence was not

-6- insufficient on this point. Nguyen knowingly dispatched his

co-conspirators to break into Monica's home and steal her

black bag. He knew that at least one member of this

unwholesome crew carried a gun. He also knew, from living

with Monica, that her apartment was frequently occupied by

family members and house guests. Indeed, Monica specifically

testified that she rarely would leave her black bag at the

apartment when it was not occupied; rather, she would only

leave it at home if her mother was there to look after it.

Further, there was evidence that one of Nguyen's motives in

forming the conspiracy was to follow through on a grudge he

held against Monica's brother, Kevin, who lived in the

apartment: Nguyen stated, in reference to the planned crime,

that Kevin would "get what is coming to him";3 and the robbers

specifically asked for Kevin on entering the apartment. On

these facts, a jury could easily find that robbery was a

foreseeable outcome of the conspiracy.

III. Sentencing

3 Nguyen's suggestion that this statement was intended to mean only that "Kevin's life could be beset by bad karma as a result of some evil deed attributed to him" is inventive, but is hardly the only conclusion a rational jury could reach.

-7- Nguyen also appeals his sentence, specifically the

five-level increase the district court imposed under U.S.S.G.

§ 2B3.1(b)(2)(C) on the ground that a firearm was possessed

during the commission of the robbery. He appeals on two

grounds.

First, Nguyen argues that the court committed clear

error in finding that Nguyen should have foreseen that a co-

conspirator would carry a firearm in the course of the

robbery. See United States v. Carrillo-Figueroa,

(1st Cir. 1994) (applying clear error review to similar

claim). The district court erred, Nguyen contends, by relying

on testimony struck during trial for lack of foundation.

But this contention is wholly inaccurate. The

district court relied on the testimony of Cong, who testified

both that Nguyen saw him with a firearm while he was at

Nguyen's house as the robbery was being planned, and also that

he thought Nguyen knew that he would take the firearm with him

to use in the robbery. Only the latter testimony was struck

for lack of foundation during trial, and it was only the

former testimony that the district court relied on in imposing

the firearm enhancement. In ruling on the issue, the court

-8- noted that all that mattered was whether Nguyen should have

foreseen (rather than whether he knew) that a firearm would be

possessed during the offense,4 and it concluded that:

the testimony of Cong was clear that he saw, he, the defendant, saw Cong with the weapon in advance and therefore . . . it was certainly foreseeable that Cong would be in possession of the firearm during the offense.

Thus the district court did not commit the error alleged by

Nguyen.

Second, Nguyen argues that under Apprendi v. New

Jersey,

(2000), the facts underlying a potential

sentencing enhancement should have been pled in the

indictment. We decline to rule on whether Apprendi requires

such facts to be pled in the indictment, for Apprendi does not

apply here in any event, as Nguyen's sentence did not exceed

the 20-year statutory maximum. See United States v. Robinson,

(1st Cir. 2001) (Apprendi applies only

4 U.S.S.G. § 2B3.1(b)(2)(C) provides for a five-level enhancement "if a firearm was brandished, displayed, or possessed" during the offense. U.S.S.G. § 1B1.3(a)(1)(B) further provides that in a conspiracy case, specific offense characteristics such as this are determined not only on the basis of the defendant's own conduct, but also on the basis of "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity."

-9- where defendant's actual sentence exceeds default statutory

maximum).

Affirmed.

-10-