US v. Desmond Simpson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:13-cr-00131-BO-1 Copies to all parties and the district court/agency. [999907656].. [15-4059]

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

delivery

driver.

to

the

Simpson

April

20

timely

robbery
appealed,

of

a

China

Wok

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.
Turning

For the reasons that follow, we affirm.
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.
F.3d 164, 171 (4th Cir. 2011).

United States v. Allen, 631
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).

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contain[s]

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a

‘deliberate

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falsehood’

or

statement

made

with

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

statement,

the

warrant

affidavit

support a finding of probable cause.”

is

not

sufficient

to

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
based

“on

a
an

defendant
omission,

challenges
rather

the

than

validity
on

a

false

statement,” his “burden increases yet more.”
Tate, 524 F.3d 449, 454 (4th Cir. 2008).

of

a

warrant

affirmative

United States v.

“[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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witness

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and

victim

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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,

fingerprints.
undercuts
allege,

Simpson

the

less

of

that

probable

establish

omitted

cause,
the

but

Simpson’s
information

he

does

information

court

that

reckless

not
was

We

district

with

the

match

whether the omissions rendered the affidavit misleading.
the

omitted

that

not

for

with

or

did

disregard

agree

omitted

robbery
argues

existence

much

deliberately

uncharged

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,

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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.
Gates, 462 U.S. 213, 238 (1983).

Illinois v.

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.
denial

of

a

motion

to

dismiss

an

In reviewing the

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.

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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,

depleted the assets of the restaurants.

albeit

small

sums,

Thus, the robberies had

the requisite minimal effect on interstate commerce to establish
federal subject matter jurisdiction.
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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.
Court

stated

that,

“[b]ecause

our

The Supreme

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);

States

see

United

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

Simpson’s

court

did

not

err

in

dismiss the indictment.

7

denying

motion

to

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Finally, Simpson argues that the district court erred by
denying

his

evidence

Fed.

was

R.

Crim.

P.
to

insufficient

interstate

commerce.

pertaining

to

his

His

motion

29

motion,

show

argument
to

the
is

dismiss

claiming
robberies

identical

and

that

fails

affected

to

for

the

the
the

one
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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