* The Honorable G. Thomas Van Bebber, Senior DistrictJudge, United

States District Court for the District of Kansas, s itting by designation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 25 2002 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. ELLIOT C. TOLES,

Defendant - Appellant. No. 01-5009

Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 99-CR-97-C)

Thomas Scott Woodward, First Assistant United State s Attorney, (David E. O’Meilia, United States Attorney, with him on the b riefs), Tulsa, Oklahoma, for Plaintiff-Appellee. William D. Lunn, Tulsa, Oklahoma, for Defendant-App ellant.

Before BRISCOE andMURPHY , Circuit Judges, and VAN BEBBER , Senior District Judge *

.

MURPHY , Circuit Judge.-2-

I. INTRODUCTION Defendant-Appellant Elliot C. Toles was charged with various offenses in Tulsa, Oklahoma in a superceding indictment. At th e conclusion of a jury trial, Toles was found guilty of multiple counts each of i nterference with interstate commerce, using or brandishing a firearm during a c rime of violence, and bank robbery. In addition, he was convicted of aiding a nd abetting in connection with each of the above offenses. On appeal, Toles argue s that (1) police investigators obtained incriminating statements from him in violation of the Fifth and Sixth Amendments; (2) the district court’s restriction onthe cross-examination of a witness violated his Confrontation Clause rights; ( 3) there was insufficient evidence to sustain his convictions under the Hobbs Act and 18 U.S.C. § 924(c); (4) the prosecutor’s improper remarks during closin g statements constituted reversible error; and (5) there was cumulative erro r. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm

. II. BACKGROUND During the evening hours of June 30, 1999, Toles wa s arrested with DeMarques Morris and Sh-Pone Harris in connection w ith an armed robbery of a Burger King restaurant in Wichita, Kansas. Toles w as taken to the FBI building1 Toles was eventually tried and convicted of the Kan sas crimes in federal

court. In a prior appeal from the Kansas convictio ns, this court denied Toles’ constitutional challenge to the Hobbs Act as exceed ing Congress’ power to regulate under the Commerce Clause. See United States v. Toles , No. 00-3012, 2001 WL 314523, at **1 (10th Cir. Apr. 2, 2001).

2 A tag agency produces driver’s licenses and state i dentification cards. It also sells vehicle tags, which function as a licens e tax, and pike passes, which permit Oklahoma and out-of-state residents to drive on Oklahoma toll roads. -3- in Wichita. FBI Special Agent Randy Ewy and Sergea nt Michael Hennessy of the Wichita Police Department interviewed Toles for sev eral hours into the early hours of July 1. After signing a waiver of rights , Toles mentioned other robberies in Kansas and Oklahoma. After this firstinterview, Toles was taken to the Sedgwick County Adult Detention Facility (“SCAD F”) to spend the night. Sometime prior to July 2, 1999, Toles was formally charged for his participation in the Kansas robberies. 1 He was represented by counsel in that matter. On July 2, Wichita Police Department Detec tive Steven Nevil, on assignment with the FBI Violent Crime Task Force, and FBI Special Agent Pritchett accompanied Toles to a scheduled court ap pearance on the Kansas charges. At the Wichita federal courthouse, Pritch ett told Nevil that Toles wanted to speak with Nevil. Nevil and Pritchett escorted Toles to a restroom. After signing a waiver of rights form, Toles indicated th at he was responsible for the robberies of a tag agency 2 and a bank in Tulsa. The interview in the bathroo m was cut short by Toles’ scheduled court appearance, but Nevil had at some point3 Morris was also found guilty of multiple offenses and brought a separate

appeal of those convictions. See United States v. Morris , No. 99-CR-97-C (D. Kan. Dec. 11, 2000), appeal docketed, No. 00-5255 (10th Cir. Jan. 19, 2001). -4- given Toles a business card and stated that he coul d call Nevil collect at the FBI if he had anything further to discuss. A few hours after the arraignment, Toles placed a c ollect call from the SCADF to Detective Nevil. After Nevil arranged a m eeting with Toles at the SCADF and advised him of his rights, Toles made statements implicating himself in four robberies in Tulsa, the indicted charges in this case. Toles further stated that a fake beard and mustache and a note were used during one of the robberies. Toles was indicted and tried with co-defendant Morr is for the robberies of the Northside Tag Agency, a Homeland grocery store, and branches of the Bank of Oklahoma and the American State Bank. At trial, Harris testified as a government witness pursuant to a grant of use immun ity. The district court did not permit Toles to cross-examine Harris about the details of a plea agreement Harris had entered into in the Kansas prosecution. Toles was found guilty of two counts of violating the Hobbs Act, 18 U.S.C. § 1951 , two counts of 18 U.S.C. § 924(c), and two counts of bank robbery, 18 U.S.C. § 2113(a). 3-5-

III. DISCUSSION A. Motion to Suppress Incriminating Statements Toles argues that the district court’s refusal to s uppress his post-arrest statements, in which he incriminated himself in the Oklahoma robberies, violated his Fifth and Sixth Amendment rights. Specifically , Toles alleges that two separate discussions with FBI agents on July 2 viol ated his Sixth Amendment right to counsel because Toles had already been for mally charged and was represented by counsel. He further alleges that th e statements were not voluntarily given, in violation of the Fifth Amendm ent. After conducting an evidentiary hearing, the district court denied Tole s’ motions to suppress. 1. Sixth Amendment Right to Counsel In reviewing the district court’s order granting ordenying a motion to suppress, this court accepts the district court’s f actual findings unless clearly erroneous and considers the evidence in the light m ost favorable to the district court’s determination. United States v. Caro , 248 F.3d 1240, 1243 (10th Cir. 2001). “We are mindful that at a hearing on a moti on to suppress, the credibility of the witnesses and the weight given to the eviden ce, as well as the inferences and conclusions drawn therefrom, are matters for th e trial judge.” Id. (quotation omitted).4 The Supreme Court has recently created a narrow exc eption to McNeilby

holding that the Sixth Amendment right to counsel a lso attaches to uncharged offenses that would be considered the “same offense ” under Blockburger v. United States , 284 U.S. 299 (1932). See Texas v. Cobb , 532 U.S. 162, 173 (2001). The parties do not cite Texas v. Cobb , or otherwise argue that the exception it created applies in the instant case. -6- A defendant’s Sixth Amendment right to counsel atta ches when formal judicial proceedings, such as a formal charge, prel iminary hearing, indictment, information, or arraignment, have been initiated ag ainst him. See United States v.
Gouveia , 467 U.S. 180, 187-88 (1984). The Sixth Amendmentright to counsel, however, is offense-specific and does not prevent l aw enforcement from questioning a defendant about unrelated or uncharge d criminal activity. See McNeil v. Wisconsin , 501 U.S. 171, 175 (1991). 4 In this case, Toles had been charged for the Kansas crimes at the time he gave both July 2 statements, but formal criminal pr oceedings had not been brought against him for the Oklahoma crimes. Thus, Toles’ Sixth Amendment right to counsel had not attached with respect to t he unindicted Oklahoma crimes. 2. Voluntariness of Incriminating Statements Toles also alleges that the two statements he gave to Detective Nevil on July 2, 1999 were involuntary, in violation of his Fifth Amendment due process rights. He argues that the incriminating statemen t he gave to law enforcement in a courthouse restroom before his arraignment on the Kansas crimes was the result5 Toles also claims that his subsequent incriminating statement to Detective

Nevil at the SCADF was nothing more than a continuation of the earlier interview at the courthouse. By the time Nevil spoke to Tole s at the SCADF, however, several hours had elapsed since the interview in th e courthouse bathroom. The passage of time alone undercuts his argument and we review them as separate incidents. -7- of law enforcement’s high-pressure tactics, Toles’ lack of sleep in the preceding forty-eight hours, and his youth and limited intell igence. 5
This court reviews de novo the voluntariness of a statement, although specific underlying findings of fact are reviewed f or clear error. See United States v. Gonzales , 164 F.3d 1285, 1289 (10th Cir. 1999). When the g overnment obtains incriminating statements through acts, thre ats, or promises which cause the defendant’s will to be overborne, it violates t he defendant’s Fifth Amendment rights and the statements are inadmissible at trial as evidence of guilt. See United States v. Glover , 104 F.3d 1570, 1579 (10th Cir. 1997) (citing Malloy v. Hogan , 378 U.S. 1, 7 (1964)). The determination of volunt ariness is based on the totality of circumstances. Gonzales , 164 F.3d at 1289. Relevant circumstances embrace both the characteristics of the accused and the det ails of the interrogation. Id. (quotation omitted). Such factors include (1) the age, intelligence, and education of the defendant; (2) the length of detention; (3) the length and nature of the questioning; (4) whether the defendant was advised of his constitutional rights; and (5) whether the defendant was subjected to phys ical punishment. Glover , 104 F.3d at 1579 (citing Schneckloth v. Bustamonte , 412 U.S. 218, 226 (1973)).-8-

After reviewing the entire record, this court concl udes that Toles’ statements on July 2 were freely and voluntarily gi ven. At both the bathroom and SCADF interviews, Toles was advised of his constitutional rights and in each instance he signed a written waiver of rights. Alt hough Toles alleges that the agents did not inform him about the nature of the c harges against him and their consequences, a defendant’s confession is not coerc ed merely because law enforcement did not inform the defendant of all the potential charges that could be brought. See United States v. Nguyen , 155 F.3d 1219, 1222 (10th Cir. 1998)

. In both instances, Toles was lucid and responsive t o questioning. Toles concedes that there was no evidence of the use or t hreat of physical punishment. At the time of the interviews, Toles was twenty-one and had completed the ninth grade prior to receiving his Graduate Equivalency D iploma while incarcerated for other crimes. Detective Nevil testified at trial t hat, based on his interactions with Toles, nothing suggested that he had a limited inte lligence. Moreover, Toles had previously been convicted of a felony, indicating t hat he had previous experience with the criminal justice system. Thus, there is n o evidence indicating that Toles was “unusually susceptible to coercion because of a ge, lack of education, or intelligence.” Id. at 1222 (quotation omitted). Furthermore, the district court’s finding that ther e was no evidence of any threat, coercion, undue influence, or promise made in exchange for Toles’-9-

statements is not clearly erroneous. Detective Nev il testified that he did not make any promises to Toles in the courthouse restroom. Indeed, Nevil testified at trial that it was Toles who broached the subject of the O klahoma crimes. Although Toles testified that he made the bathroom statementafter discussing the benefits of cooperation and the possibility of having all th e charges run concurrently, the district court’s determination necessarily meant th at it credited Nevil’s testimony and discounted Toles’. Detective Nevil also testif ied it was possible that Agent Pritchett, who was present at the bathroom intervie w, discussed with Toles the consequences of cooperation. Pritchett did not tes tify at the suppression hearing or at trial. The possibility that Pritchett mayhave discussed the benefits of cooperation with Toles does not render his statements involuntary. Cf. Nguyen , 155 F.3d at 1222 (explaining that agent’s testimonythat another agent mayhave agreed to inform the prosecutor of the defendant’s cooperation did not coerce the defendant’s statement). Toles’ SCADF statement was also given voluntarily. Toles initiated contact with Nevil to discuss the Oklahoma robberie s. Cf. United States v.
Fountain , 776 F.2d 878, 885 (10th Cir. 1985) (noting that d efendant’s initiation of contact with law enforcement is a factor in the voluntariness of statement). At the SCADF, Nevil reminded Toles that he had counsel and could have counsel available if he so wanted, but Toles did not reques t counsel’s presence. Although-10-

Nevil acknowledged that he discussed the possibility of consolidation with Toles, it was Toles who raised the topic. Moreover, Nevil explained to Toles that any transfer of charges pursuant to Rule 20 of the Fede ral Rules of Criminal Procedure must be initiated by defense counsel and “wasn’t something that the government is responsible for setting in motion.” Nevil specifically suggested that Toles speak to his attorney if he wanted a mor e detailed explanation of the procedure or wished to pursue consolidation, but To les did not seek the advice of counsel before giving an incriminating statement. Viewing the evidence in the light most favorable to the government, we agree wi th the district court that Toles’ incriminating statements were voluntary.
B. Limitation on Cross-Examination of Sh-Pone Harr is Toles next contends that limitations on his cross-e xamination of Harris violated his Confrontation Clause rights under the Sixth Amendment. Harris testified at trial after the government granted him use immunity. During the trial, Toles attempted to cross-examine Harris about the d etails of a plea agreement Harris had entered into in the Kansas criminal case . The government, however, argued that the plea agreement was made in another jurisdiction, was not binding on Harris in this case, and was therefore irrelevant. Under cross-examination by co-defendant Morris, Harris stated that he was not testifying because of the plea agreement in Kansas. Based on that testimony, the district court did not allow-11-

Toles to cross-examine Harris about the contents of the plea agreement. The district court stated that the contents of the pleaagreement were irrelevant because Harris had already stated that his testimony was not pursuant to the plea agreement and because the Kansas plea agreement “ha s no relationship to this
case.” This court reviews de novo whether cross-examination restrictions violate a defendant’s Sixth Amendment right to confrontation. United States v. McGuire , 200 F.3d 668, 677 (10th Cir. 1999). “[T]he Confrontation Clause guarantees an opportunityfor effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Delaware v. Van Arsdall , 475 U.S. 673, 679 (1986) (quotation omitted). Although the trial court has wide discretion to imp ose reasonable limits on the scope of cross-examination, “the exposure of a witn ess’ motivation in testifying is a proper and important function of the constitution ally protected right of crossexamination.” Id . at 678-79 (quotation omitted). A defendant’s Con frontation Clause rights are violated when he is prohibited fr om engaging in otherwise appropriate cross-examination designed to elicit th e witness’ bias and a reasonable jury might have received a significantlydifferent impression of the witness’ credibility. See id. at 680.-12-

The parties dispute whether Harris’ plea agreement in a federal Kansas court is binding on him in a federal court in Oklah oma. This court has not previously addressed the issue of whether a plea ag reement made in one jurisdiction is binding on a defendant in another j urisdiction, and need not resolve it in this case. Even if the Kansas plea agreement were binding on H arris in Oklahoma and the limitation on the cross-examination of Harris v iolated Toles’ Confrontation Clause rights, the limitation is subject to harmles s error review. See United States
v. DeSoto , 950 F.2d 626, 630 (10th Cir. 1991) (citing Chapman v. California , 386 U.S. 18, 22 (1967)); see also Van Arsdall , 475 U.S. at 684. In conducting a harmless error review, this court determines whethe r the error was harmless beyond a reasonable doubt. See Van Arsdall , 475 U.S. at 684. Among the factors to consider are the importance of the witness’ test imony in the prosecution’s case, the cumulative nature of the testimony, the presenc e or absence of corroborating or contradictory testimony, the extent of cross-examination otherwise permitted, and the overall strength of the prosecution’s case. Id. In this case, the record contains ample evidence of Toles’ guilt. Detective Nevil testified that Toles confessed to each of the four robberies charged in this case and provided details about the location of certain robberies, the amounts taken, and his role as a getaway driver. These det ails were consistent with the-13-

details provided in DeMarques Morris’ confession to Detective Nevil on July 2 at the SCADF. Toles also indicated that a note and a fake beard and mustache were used in one of the bank robberies, which is corrobo rated by Morris’ confession and the testimony of Dekisha Verner, a bank teller at the American State Bank robbery. Furthermore, Toles’ cross-examination of Harris was circumscribed only as to the Kansas plea agreement. Although the jury di d not hear testimony about the contents of the agreement, it heard Toles elicit te stimony from Harris about its existence. Toles conducted extensive cross-examination of Harris about the statements Harris gave to law enforcement and the c onversations he had with Toles and Morris about the robberies. The jury was able to witness Harris’ demeanor and assess his credibility. In addition, the possibility that Harris was biasedin favor of the government is mitigated by the fact that he was gra nted use immunity for his trial testimony. Harris testified that he understood he could be held in criminal contempt if he refused to testify or gave false tes timony. Thus, even if the jury had heard testimony that the government gave Harris favorable treatment under the Kansas plea agreement, the potential bias from such treatment is mitigated by the specter of criminal contempt charges against Ha rris.-14-

Finally, the government’s case against Toles was strong even without the testimony of Harris, who was the only witness who t estified about Toles’ direct involvement in certain robberies. Given Toles’ and Morris’ confessions, as well as the corroborating evidence of the other testifyi ng witnesses, this court is satisfied that the limitation on the cross-examinat ion of Harris was harmless beyond a reasonable doubt. C. Sufficiency of Evidence Claims This court reviews the sufficiency of evidence de novo

. See United States v. Malone , 222 F.3d 1286, 1290 (10th Cir. 2000). We do so, however, “viewing the evidence and the reasonable inferences to be dr awn therefrom in the light most favorable to the government. We will reverse only if no rational trier of fact could have found the essential elements of the crim e beyond a reasonable doubt.” Id. at 1290-91 (quotation omitted). 1. Hobbs Act Conviction for the Northside Tag Agen cy Robbery The Hobbs Act punishes activity that “in any way ordegree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or co nspires so to do.” 18 U.S.C. § 1951(a). The statute defines “commerce” as “all commerce between any point in a State . . . and any point outside thereof; all commerce between points within the same State through any place outside such State .” Id . § 1951(b)(3). The-15-

Supreme Court has stated that the Hobbs Act “speaks in broad language, manifesting 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). Toles claims that there was insufficient evidence t o establish the interstate commerce requirement of the Hobbs Act for the North side Tag Agency robbery. He concedes that binding precedent in this circuit requires the government to demonstrate only a de minimis effect on interstate commerce. See Malone , 222 F.3d at 1294-95 (explaining that the Supreme Court’ s decisions in United States
v. Morrison , 529 U.S. 598 (2000), and Jones v. United States , 529 U.S. 848 (2000), did not affect the de minimis standard). In this circuit, “only a potential effecton commerce is required to satisfy the interstate commerce element.” United States v. Wiseman , 172 F.3d 1196, 1216 (10th Cir. 1999) (emphasis added); see also United States v. Chanthadara , 230 F.3d 1237, 1253-54 (10th Cir. 2000) (relying onthe depletion of business assets resulting from robbery to find potential eff ect on interstate commerce); Nguyen , 155 F.3d at 1228 (same); United States v. Zeigler , 19 F.3d 486, 493 (10th Cir. 1994) (same). Wiseman , Chanthadara , Zeigler , and Nguyen stand for the proposition that there need not be a showing of actualeffect on interstate commerce to satisfy the de minimis requirement. See Nguyen , 155 F.3d at 1228-16-

(collecting cases from other circuits). In Wiseman , for example, we found no error in instructing the jury that the government c ould satisfy the interstate commerce requirement merely by demonstrating that t he stolen funds could have been used to purchase goods in interstate commerce. See 172 F.3d at 1215-16. This court sees no principled distinction between the purchase of interstate goods in Zeigler , Nguyen , Chanthadara , and Wiseman , and the sale of goods, as implicated here. When the affected business sold g oods or services, the government can satisfy the de minimis requirement by showing that the robbery could have decreased the business’ sales in interstate c ommerce. At trial, Thomas McGee, a clerk at the Northside Ta g Agency, testified that the agency sold vehicle tags, which are an annual l icense tax, and pike passes, which permit Oklahoma and out-of-state residents to drive on Oklahoma toll roads. The tag agency accepts out-of-state checks as payment for tags and driver’s licenses. For pike passes, the agency acc epts credit cards which are cleared out-of-state. Moreover, McGee testified th at out-of-state residents who traveled to Oklahoma could purchase pike passes at the tag agency. The robbers took money from the tag agency, customers, and McGe e. As a result of the robbery, the tag agency was closed for the remainde r of the day. Viewing this uncontroverted evidence and the reason able inferences drawn therefrom in the light most favorable to the govern ment, as we must, a reasonable6 We note that Toles does not challenge the district court’s instruction on

the Hobbs Act, which included in part: -17- jury could conclude that the robbery had a potential effecton interstate commerce. It is undisputed that customers were robbed at the tag agency. The tag agency’s closure could have prevented them from using out-of-state checks and credit cards to purchase pike passes and license tags from the a gency. See Chanthadara , 230 F.3d at 1253-54 (relying in part on business’ reven ues from out-of-state credit cards to conclude there was a de minimis effect on interstate commerce). The agency’s closure also could have prevented potentia l customers from going to the agency and using out-of-state forms of payment. Mo reover, the robbery could have delayed or obstructed sales to out-of-state re sidents who wished to purchase pike passes. See United States v. Lotspeich , 796 F.2d 1268, 1270 (10th Cir. 1986). Indeed, this court concluded in Lotspeich that there was a de minimis effect by relying in part on evidence that a busine ss had proposed to build a racetrack “ with the hope ” of attracting out-of-state customers. See id. (emphasis added). There is thus sufficient evidence for a ju ry to conclude that the closing of the tag agency could

“in any way or degree obstruct[], delay[], or affe ct[] commerce.” 18 U.S.C. § 1951(a); see also United States v. Boston , 718 F.2d 1511, 1516 (10th Cir. 1983) (approving jury instruc tion requiring government to prove that the defendant “actually or potentiallyobstructed, delayed or affected interstate commerce or attempted to do so” (emphasi s added)). 6If in the case of the Northside Tag Agency, the gov ernment

proves beyond a reasonable doubt that the Northside Tag Agency provided title and registration transfer services t o individuals coming to Oklahoma from outside the State of Oklahoma and/ or that the Northside Tag Agency accepted national credit cards in payment, then you are instructed that you may find that such defendant under consideration obstructed, delayed, or affected comm erce. . . . I R. Doc. 99 at 22. -18- The dissent acknowledges that the evidence may have permitted the jury to infer “some possibility” that the agency’s temporary closure prevented use of outof-state forms of payment. “[S]ome possibility,” h owever, is apparently less than de minimis under the dissent’s view and insufficient to estab lish a potential effect on interstate commerce. The dissent suggests that the government must present evidence which would allow a jury to infer that tra nsactions regularlyinvolved out-of-state payments. As the dissent recognizes, however, our cases require only that the government demonstrate a potential effect on interstate commerce. Evidence showing whether and to what extent a busin ess’ historic sales derived from out-of-state forms of payments and sales to out-of-state residents is, by definition, unnecessary for a jury to conclude thatthe robbery could have impeded the tag agency’s ability to engage in interstate co mmerce. Here, there was a realistic possibility that an out -of-state resident who wanted to purchase a pike pass at the Northside Tag Agency could not do so after the robbery. There was also a realistic possibility that one of the customers7 Toles argues that the tag agency was “a ‘state acti vity’ that had nothing to

do with ‘the large scale buying and selling of good s and services’ required to fall under the definition of ‘commerce.’” To the extentthat Toles raises a purely legal claim that the robbery of a state agency cann ot satisfy the “commerce” requirement of the Hobbs Act, this court denies the claim as without merit. That the business robbed in the instant case was a state agency, as opposed to a commercial concern, is of no consequence. The tag agency sold goods—here, tags and pike passes—and accepted payments like anyother commercial establishment and was engaged in interstate commerc e. The Hobbs Act’s prohibition on activity that “ in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce ” is sufficiently broad to encompass the selling of tags and pike passes. See 18 U.S.C. § 1951(a) (emphases added).

8 In addition, Toles contends that there was no evide nce introduced at trial that the guns used moved in or affected interstate commerce. Because 18 U.S.C. § 924(c) does not contain an interstate commerce re quirement, Toles’ argument is without merit and does not warrant further discussi on. -19- robbed wanted to use an out-of-state check or credi t card to purchase a vehicle tag. In convicting Toles of the robbery, the jury necessarily found that there was at least a potential effect on interstate commerce, a finding that was reasonable and supported by the prosecution’s uncontroverted e vidence. We conclude that the government’s evidence was “not so trivial as to automatically place the[] robber[y] beyond the reach of the Act.” 7 2. 18 U.S.C. § 924(c) Convictions Toles argues that the government’s evidence that To les used a real gun in the Homeland grocery robbery and the tag agency rob bery was insufficient for a jury to convict. 8 At trial, Thomas McGee testified that one of the robbers used a “big,” “shiny” handgun during the robbery. McGee, who had served in the-20-

military and had some familiarity with firearms, al so testified he had no doubt that the gun was real. On cross-examination, McGee testified that many imitation guns look like real guns and that the robbers did n ot actually fire the gun. Similarly, Raymond Crawford, the assistant manager at the Homeland grocery store at the time of the robbery, testified that he had no doubt that the robbers used a real gun. Crawford stated on cross- examination that the gun was not fired or discharged during the robbery and thatit was possible that the gun may not have been real. Viewing this testimony in the light most favorable to the government, a reasonable jury could have concluded that the guns used in the Homeland and tag agency robberies were real. D. Government’s Closing Remarks During the government’s rebuttal closing statement, the prosecutor stated to the jury:

[GOVERNMENT:] You know, you come from varied backg rounds. That’s very, very important in our system of justic e. Mr. McGriff back here with 27 proud years in the park service, and we’ve got — [TOLES:] Your Honor, I object to this line — I obj ect to this comment on individual jurors. THE COURT: Overruled.-21-

[GOVERNMENT:] We’ve got engineers, computers [sic] , people who work in pharmacies, bookkeepers, tailors, admin istrators, office managers. You all bring collective wisdom. And th e Judge is going to tell you use your common sense, use your common sense collectively, work together. Bring your varied bac kgrounds to this task. The Judge will tell you to use your common s ense.
Toles contends that the prosecutor’s remarks singli ng out a juror by name were improper. Toles also claims that the prosecutor repeatedly mi sstated the evidence in his closing remarks. Specifically, he contends that the following remarks by the prosecutor were improper: (1) Toles had spoken with Sh-Pone Harris about using a note to commit the robberies; (2) Toles had state d in his confession that the bank robberies were initiated by asking for change; and (3) Toles had asked Harris, who cut Toles’ hair, to save the clippings for a disguise in the robberies. Toles made contemporaneous objections to the first two allegedly improper statements, but did not object to the third. “In some circumstances, prosecutorial misconduct may be so severe that a new trial is required.” United States v. Meienberg , 263 F.3d 1177, 1180 (10th Cir. 2001). This court reviews de novo whether prosecutorial misconduct occurred, which is a mixed question of law and fact

. See United States v. Gabaldon , 91 F.3d 91, 94 (10th Cir. 1996). If the prosecut or’s statement is-22-

improper, it is harmless unless there is reason to believe that it influenced the jury’s verdict. See id. In assessing whether the misconduct had such an imp act, we consider the trial as a whole, including the curative acts o f the district court, the extent of the misconduct, and the role of the m isconduct within the case . . . [T]o warrant reversal, the misconduc t must have been flagrant enough to influence the jury to convict on grounds other than the evidence presented.

Id. (quotation omitted). In this case, the government concedes that it erred in singling out a juror by name during closing arguments. This error, however , was harmless. The district court instructed the jury that the closing statemen ts were not evidence. After Toles objected to the reference, the prosecutor did not repeat the improper remark or mention other jurors by name. Although this cou rt does not condone the prosecutor’s remark in this case, the reference was not of a magnitude to warrant reversal of the verdict. The prosecutor’s alleged misstatements of the evide nce during the government’s closing statements, however, were not improper. All three statements cited by Toles were either ambiguous or were inferences that a jury could have properly drawn from the evidence. See United States v. Pena , 930 F.2d 1486, 1490 (10th Cir. 1991) (“[A] prosecutor’s summation may appropriately suggest to the jury what inferences it ought to draw from the evidence in the-23-

case.”). To the extent that any misstatement of th e evidence could have been construed from the prosecutor’s statements, they we re harmless, or, in the case of the third statement, did not constitute plain error

. See United States v. Hooks , 780 F.2d 1526, 1532 (10th Cir. 1986).
E. Cumulative Error Finally, Toles claims that even if each of the alle ged errors do not rise to the level of reversible error, they collectively co nstitute cumulative error. A cumulative-error analysis aggregates all errors fou nd to be harmless and “analyzes whether their cumulative effect on the outcome of t he trial is such that collectively they can no longer be determined to be harmless.” United States v.
Rivera , 900 F.2d 1462, 1470 (10th Cir.1990) (en banc). T his court considers whether the defendant’s substantial rights were aff ected by the cumulative effect of the harmless errors. Id. Only actual errors are considered in determining whether the defendant’s right to a fair trial was v iolated. Id. at 1470-71. If any of the errors being aggregated are constitutional i n nature, the cumulative error must be harmless beyond a reasonable doubt, in acco rdance with Chapman v. California , 386 U.S. 18 (1967). See id. at 1470 n.6. In this case, the only errors to be aggregated are the court’s limitation on the cross-examination of Sh-Pone Harris, which we m erely assumed was error, and the prosecutor’s improper reference to an indiv idual juror during closing-24-

arguments. See Sections III.B., D., supra . After examining the proceedings in their entirety, we cannot say that Toles’ right to a fair trial was substantially impaired by the cumulative effect of these errors, assumed and conceded. Accordingly, this court AFFIRMS the Defendant’s convictions in all respects.No. 01-5009, United States v. Toles

BRISCOE , Circuit Judge, concurring and dissenting: I concur in the majority's resolution of all of the issues except its affirmance of the Hobbs Act conviction, which I wou ld reverse because of insufficient evidence. The Hobbs Act provides in relevant part that “[w]ho ever in any way or degree obstructs, delays, or affects commerce or th e movement of any article or commodity in commerce, by robbery” shall be guilty of an offense against the United States. 18 U.S.C. § 1951(a). This court ha s repeatedly held, even after the Supreme Court's decision in United States v. Lo pez , 514 U.S. 549 (1995), that, to support a conviction under the Hobbs Act, the government must show only that the defendant's acts had a minimal effecton interstate commerce. E.g. , United States v. Chanthadara , 230 F.3d 1237, 1253 (10th Cir. 2000), cert. denie d , 122 S. Ct. 457 (2001). For example, this court has held that the required minimal effect on commerce may be established by evidence t hat the robbery at issue depleted the assets of a business that customarily purchased items in interstate commerce. E.g. , United States v. Nguyen , 155 F.3d 1219, 1224 (10th Cir. 1998). At the trial in this case, the government presented evidence indicating that the Northside Tag Agency essentially operated as a collection agency for the State of Oklahoma and provided three general types of goo ds or services to its customers: (1) it made pictures for drivers' licens es and Oklahoma state-2-

identification cards; (2) it sold Oklahoma license plates for all types of vehicles; and (3) it sold passes for the Oklahoma turnpike. As for the details of the robbery, the government presented evidence that Tol es and others entered the Agency at approximately 12:05 p.m. on April 1, 1999 , and proceeded to take money from the Agency and the Agency's employees an d customers. The government's evidence further indicated that, as a result of the robbery, the Agency was forced to close its operations for the a fternoon following the robbery. The government relied on two very limited categorie s of evidence (both based on the brief testimony of a single witness wh o worked at the Agency) to attempt to establish that the robbery had the requi red minimal effect on interstate commerce. First, the government focused on the Age ncy's customers, presenting testimony that some of the customers had moved to O klahoma from other states and were seeking Oklahoma tags and drivers' license s, and that out-of-state residents could purchase Oklahoma turnpike passes. Second, the government presented testimony regarding forms of payment acce pted by the Agency -- it accepted major credit cards whose payments were pro cessed out-of-state, and it accepted out-of-state checks for tags and drivers' licenses. In my view, only the second of these categories has any relation to interstate commerce. The Hobbs Act defines “commer ce” as “all commerce between any point in a State . . . and any point ou tside thereof; all commerce1 It appears that the majority does not rely on the out-of-state resident

evidence either. -3- between points within the same State through any pl ace outside such State.” 18 U.S.C. § 1951(b)(3). The fact that out-of-state re sidents may have visited the Agency and purchased items does not satisfy this st atutory definition. In other words, barring some additional fact (such as use of an out-of-state form of payment), such a transaction would not involve “com merce between any point in a State . . . and any point outside thereof” or “comm erce between points within the same State through any place outside such State.” 1 In contrast, the Agency’s acceptance of major credit cards and out-of-state c hecks does fall within the statutory definition since it would involve “commer ce between points within the same State through any place outside such State.” I further conclude that the government's evidence w as insufficient to establish that the robbery had the required minimal effect on interstate commerce. Althoughwe generally allow juries in Hobbs Act cases to dr aw reasonable inferences from the evidence, the government's evid ence here was so limited that the jury, in order to convict Toles, was required t o “pil[e] inference on inference.” United States v. Sanders , 240 F.3d 1279, 1283 (10th Cir. 2001) (internal quotations omitted). In particular, because there was no evidence as to whether and to what extentthe Agency's transactions involved use of credit c ards or outof-state checks, the jury first was required to inf er whether and to what extent2 In my view, the government could have met its evi dentiary burden by

either presenting evidence regarding how frequentlythe Agency accepted out-ofstate forms of payment (e.g. , regularly), or by presenting evidence that one or more customers in the Agency at the time of the rob bery intended to use an outof-state form of payment. -4- such forms of payment were used by Agency customers . Only after doing so, and presumably inferring that such forms of payment wer e regularly used, could the jury have inferred that the forced closure of the A gency following the robbery probably prevented one or more customers from engag ing in transactions and using such forms of payment. 2 The mere fact that credit cards or out-of-state checks could be used to purchase goods and services at the Agency does not establish without further evidentiary foundation th at they were used. It is true, as pointed out by the majority, that we previously have stated that the government need only establish a potential or p robable, as opposed to an actual, effect on interstate commerce. See Nguyen , 155 F.3d at 1228. In my view, however, the majority takes our previous stat ements to an unprecedented extreme, suggesting that literally any possibility, even in the absence of any evidence pertaining to the business' past experienc e, is sufficient to establish the required de minimis effect on interstate commerce. This overlooks the fact that other circuits have held, and we seemingly have agr eed, that if the government is seeking to establish a probable rather than a direc t effect, the government must demonstrate a probability and that the probability was realistic

. E.g. , United-5-

States v. Peterson , 236 F.3d 848, 851-52 (7th Cir. 2001) (“We have lo ng held that the government need only show some actual, even if de minimis , effect, or, where there is no actual effect, a realistic probability of an effect, on interstate commerce.”); United States v. Kaplan , 171 F.3d 1351, 1354 (11th Cir. 1999) (same); Nguyen , 155 F.3d at 1228 (citing cases from other circuit s for this proposition); United States v. Buffey , 899 F.2d 1402, 1404 (4th Cir. 1990) (“[B]roadly as the extension of the interstate comm erce requirement has spread, we are still a federal, not a unitary, government a nd, to satisfy the Act, the government still must show that an effect on inters tate commerce is reasonably probable.”). While the government's evidence may h ave allowed the jury to infer there was some possibility, however remote, that th e temporary closure of the Agency prevented use of out-of-state forms of payme nt, it was not sufficient to establish that this was a reasonable probability. Instead, as previously noted, the jury could have reached such a conclusion only by p iling inference upon inference. The mere proof that the Agency accepted out-of-stat e forms of payment is not enough, standing alone, to establish that inter state commerce was affected. In Nguyenand Chanthadara , we did not rely exclusively on the acceptance of out-ofstate credit cards to establish the interstate comm erce requirement. We also relied on the additional evidence that a percentage of the restaurant's revenues was-6-

generated through the use of out-of-state credit cards, that the restaurant purchased goods from several other states, and thatsales fell after the robbery. As a result, interstate commerce was affected by th e decline in credit card sales and the reduction in purchases from out-of-state ve ndors. Finally, it is clear that the government cannot rel y on the asset depletion theory utilized in Nguyenand Chanthadara . Under that theory, the robbery of a small amount of money from a business that purchase s goods from another state can be deemed to have a sufficient potential aggreg ate effect on interstate commerce. Here, however, there was no evidence that the Agency itself purchased any items in interstate commerce. Cf. Chanthadara , 230 F.3d at 253 (concluding robbery of restaurant had effect on int erstate commerce where robbery forced restaurant to close for twenty-two d ays and its revenues dropped markedly after it reopened, causing a reduction in the restaurant's out-of-state purchasing). In sum, the government's evidence was insufficient to support a Hobbs Act conviction. I would reverse Toles' conviction and vacate his sentence on this

count.