United States of America v. Timothy James Donahue

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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:

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(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.

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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

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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

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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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