United States of America v. Desmond Simpson

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 to the April 20 robbery of a China Wok
delivery driver. Simpson timely appealed, 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. For the reasons that follow, we affirm.
Turning 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. United States v. Allen, 631
F.3d 164, 171 (4th Cir. 2011). 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] a ‘deliberate falsehood’ or statement made with
‘reckless disregard for the truth’ and (2) without the allegedly
false statement, the warrant affidavit is not sufficient to
support a finding of probable cause.” 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 a defendant challenges the validity of a warrant
based “on an omission, rather than on a false affirmative
statement,” his “burden increases yet more.” United States v.
Tate, 524 F.3d 449, 454 (4th Cir. 2008). “[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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to witness and victim 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, uncharged robbery did not match Simpson’s
fingerprints. Simpson argues that the omitted information
undercuts the existence of probable cause, but he does not
allege, much less establish that the information was
deliberately omitted or omitted with reckless disregard for
whether the omissions rendered the affidavit misleading. We
agree with the district court that 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. Illinois v.
Gates, 462 U.S. 213, 238 (1983). 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. In reviewing the
denial of a motion to dismiss an 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, albeit small sums,
depleted the assets of the restaurants. 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. The Supreme
Court stated that, “[b]ecause our 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); see United States 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 court did not err in denying Simpson’s motion to
dismiss the indictment.

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Finally, Simpson argues that the district court erred by
denying his Fed. R. Crim. P. 29 motion, claiming that the
evidence was insufficient to show the robberies affected
interstate commerce. His argument is identical to the one
pertaining to his motion to dismiss and fails for the 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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