*The Hon. John B. Jones, United States District Judge for the

District of South Dakota, sitting by designation.

_____________

No. 95-3126NI

_____________

United States of America, *

*

Appellee, *

* On Appeal from the United

v. * States District Court

* for the Northern District

* of Iowa.

Thomas Lee Farmer, ** Appellant. *

___________

 Submitted: January 8, 1996

 Filed: January 18, 1996 ___________

Before RICHARD S. ARNOLD, Chief Judge, BOWMAN, Circuit Judge, and

JONES,* District Judge.___________

RICHARD S. ARNOLD, Chief Judge.

On September 13, 1994, the so-called "three strikes and you're

out" proposal became a federal law. P.L. 103-322, Title VII,

§ 70001, 108 Stat. 1796, 1982, codified as 18 U.S.C. § 3559(c).

The statute imposes a mandatory sentence of life in prison for

persons convicted of three or more specified "serious violent

felon[ies]." 18 U.S.C. § 3559(c)(1). This case, the parties tell

us, is the first one in the country prosecuted under this new law.

It resulted in the imposition of a life term on the appellant,

Thomas Lee Farmer. We affirm the convictions and sentences in all
 1

The Hon. Michael J. Melloy, Chief Judge, United States

District Court for the Northern District of Iowa.

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respects. We hold, among other things, that the three-strikes law

does not violate either the Double Jeopardy Clause of the Fifth

Amendment or the Ex Post Facto Clause of the Constitution of the

United States.

I.

The defendant Farmer was charged in a four-count indictment.

Count I charged him with violating the Hobbs Act, 18 U.S.C. § 1951,

by attempting to rob the Hy-Vee convenience store in Waterloo,

Iowa, on October 8, 1994. Count II charged him with conspiring to

violate the Hobbs Act by planning to rob Hy-Vee stores in

Des Moines and Waterloo, Iowa, beginning in September 1994, and

continuing through October of that year. Count III charged that

Farmer had used a firearm during a crime of violence (the Waterloo

robbery) in violation of 18 U.S.C. § 924(c). And Count IV charged

Farmer with being a felon in possession of a firearm in violation

of 18 U.S.C. §§ 2, 922(g)(1), and 924(a)(2). There is no doubt

that Farmer and others planned and carried out a Hy-Vee robbery in

Des Moines on September 11, 1994, and that he and others planned to

rob the Hy-Vee store in Waterloo on October 8, a plan that failed

when police were called after the robbers had entered the store.

For this reason, we will not state at length the evidence presented

in the District Court, except as necessary to understand the

various legal and evidentiary arguments that Farmer presses on this

appeal.

After the jury convicted Farmer on all four counts, the

District Court1 sentenced him as follows: on Counts I and II, life

in prison as a consequence of the three-strikes statute, 18 U.S.C.

§ 3559(c); on Count IV (being a felon in possession of a firearm),

27 years and three months, to run concurrently with the life terms
 2

We do not understand what it means to make a sentence for a

term of years consecutive to a life term where, as here, there is

no possibility of parole on the life term. No doubt the District

Court took this step in obedience to the statute, 18 U.S.C.

§ 924(c)(1), which makes the imposition of a consecutive term of

five years mandatory. In the context of the present case, such a

sentence seems to have no practical significance, but the District

Court had no choice but to impose it.

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on the first two counts; and on Count III (use of a firearm during

a crime of violence), five years, to run consecutively to the

sentences on the other three counts.2 The Court also imposed the

mandatory special assessment of $50.00 for each count, and ordered

the defendant to make restitution in the amount of $10,000.00.

Because of the defendant's inability to pay, no fine was imposed.

II.

We consider first the legal arguments made by defendant with

respect to the three-strikes statute. The statute provides that a

person "convicted . . . of a serious violent felony shall be

sentenced to life imprisonment . . ." under certain conditions. 18

U.S.C. § 3559(c)(1) (emphasis added). The statute comes into play

when a defendant, having been convicted of a "serious violent

felony," is shown to have been convicted of at least two crimes of

a similar nature. In the present case, the government alleged and

proved that Farmer had three previous convictions, all of them in

the Iowa state courts: murder in the second degree, robbery in the

first degree, and conspiracy to commit murder.

The legal questions raised on this appeal are important but

not difficult. Most of them are controlled by precedent. First,

Farmer argues that imprisoning him for life for what he calls

"peripheral participation in a grocery robbery" is cruel and

unusual punishment in violation of the Eighth Amendment. We doubt

the justice of the characterization "peripheral." Farmer was

deeply involved in the planning of the Waterloo robbery and, before
-4-

the robbery was aborted, told one of his accomplices to "shoot 'em,

shoot 'em," referring to Hy-Vee employees. However that may be,

Farmer stands convicted of more than three violent felonies. In

the main, the level of punishment to be imposed for crimes is the

business of Congress, not the courts. Only in very narrow

circumstances has a punishment within statutory limits been held to

violate the Eighth Amendment. Imposition of a life term under the

circumstances of the present case is, in our view, well within

congressional power. See, e.g., Harmelin v. Michigan, 501 U.S. 957

(1991), in which the Supreme Court upheld a life term, without

parole, for a first offense of possession of crack cocaine. See

also Rummel v. Estelle, 445 U.S. 263, 265 (1980), upholding a life

sentence under a recidivism statute where the three felonies

involved were passing a forged check, fraudulent use of a credit

card, and obtaining money by false pretenses, none of them

involving violence. We reject Farmer's Eighth Amendment

contention.

Next, Farmer argues that the District Court had discretion

whether to impose a life term, and that, under the facts of this

case, that discretion was abused. The argument flies in the face

of the words of the statute. The statute says "shall." It

withdraws all discretion from a sentencing court. It is true that

the United States Attorney has the discretion whether to bring a

charge under the three-strikes law, but there is nothing

unconstitutional about that, in the absence of a showing (which, as

we shall see, has not been made here) that the charging decision

was based on some constitutionally forbidden factor, such as race.

Congress has power to make sentences mandatory and to withdraw all

sentencing discretion from the courts, except in capital cases.

"Congress has power to define criminal punishments without giving

the courts any sentencing discretion." Chapman v. United States,

500 U.S. 453, 467, 111 S. Ct. 1919, 1928 (1991); United States v.

Hammer, 3 F.3d 266, 269 (8th Cir. 1993) (upholding a mandatory life

sentence for involvement in a continuing criminal enterprise).
-5-

The defendant argues that the three-strikes statute violates

the Double Jeopardy Clause of the Fifth Amendment, because it

subjects him to new punishment for the crimes, listed above, of

which he has been previously convicted. Having once been convicted

and sentenced, for example, for murder in the second degree, and

having served that sentence, he cannot now, the argument runs, be

punished again by having this crime counted as one of his "three

strikes." We disagree. He is not being punished again for

previous offenses. Rather, these offenses are being taken into

account in fixing his punishment for the instant crime, violation

of the Hobbs Act. The precedents on this point are clear and

uniform. See, e.g., Parke v. Raley, 506 U.S. 20 (1992). Farmer

seeks to distinguish these cases by arguing, for example, that in

Parke the enhancement imposed on account of previous convictions

was only five years. We do not think the argument persuasive. The

holding of the case is that a recidivism provision does not violate

the Double Jeopardy Clause. The reasoning of the opinion does not

depend to any degree on the severity of the enhancement. 

Similarly, Farmer urges an argument under the Ex Post Facto

Clause - that the three-strikes statute increases the punishment

for crimes committed before its enactment. Again, precedent forces

us to disagree. See, e.g., Gryger v. Burke, 334 U.S. 728, 732

(1948). As we said in United States v. Allen, 886 F.2d 143, 146

(8th Cir. 1989), "[s]o long as the actual crime for which a

defendant is being sentenced occurred after the effective date of

the new statute, there is no ex post facto violation." 

In a variation of this argument under the Ex Post Facto

clause, Farmer points out that the Des Moines robbery, which was

committed two days before the enactment of the three-strikes law,

was alleged in the indictment as one of the overt acts in Count II,

the conspiracy count. In Farmer's view, this is an impermissible

use of pre-Act conduct. Again, the contention is inconsistent with

controlling caselaw. A conspiracy begun before the effective date
-6-

of a relevant statute, but continued after that date, may

constitutionally be punished under that statute. Conspiracy is a

continuing offense. See, e.g., United States v. Garfinkel, 29 F.3d

1253 (8th Cir. 1994); United States v. Tharp, 892 F.2d 691 (8th

Cir. 1989). 

The last of what we may call Farmer's broadside arguments -

arguments addressed to the validity of the three-strikes law in

general - is his claim that Section 3559(c) violates the Equal

Protection component of the Due Process Clause of the Fifth

Amendment. The law, Farmer argues, has, or will have, a disparate

impact on African-Americans, because a greater proportion of them

than of other Americans will be sentenced under its provisions.

The argument is supported by citations to articles that, it is

said, show that African-Americans have been disparately impacted by

federal mandatory-minimum sentencing laws in general. The answer

is that disparate impact is not sufficient to show a constitutional

violation. The Equal Protection Clause of the Fourteenth Amendment

is not violated absent invidious or discriminatory purpose, see

Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256

(1979); Washington v. Davis, 426 U.S. 229 (1976). The same is true

of the Fifth Amendment. See, e.g., United States v. Clary, 34 F.3d

709 (8th Cir. 1994), cert. denied, 115 S. Ct. 1172 (1995). In

Clary, as in a number of other cases, we upheld that portion of the

Sentencing Guidelines that treats one gram of crack cocaine as

"worth," for sentencing purposes, 100 grams of powder cocaine. The

argument was made that this disparity in sentencing had an

unfavorable impact on African-Americans. A disparate impact, we

said, was not enough to render the differential unconstitutional.

Rather, it would have to be shown that "the decisionmaker, in this

case Congress, selected or reaffirmed a particular course of action

at least in part `because of' not merely `in spite of' its adverse

effects upon an identifiable group." 34 F.3d at 712. No such

showing has been made here. So Farmer's attack on equal-protection

grounds against the three-strikes law must fail for want of proof.
-7-

III.

In addition to these rather general challenges, Farmer argues

that the three-strikes law does not apply to him, because neither

his offenses of conviction nor the predicate offenses, the three

previous convictions, are "serious violent felonies" within the

meaning of the statute. In order to understand this contention we

set out the relevant portion of the statute in full text. 

(2) Definitions. -- For purposes of this

subsection -- . . . 

* * *

(F) the term "serious violent

felony" means -- 

(i) a Federal or State

offense, by whatever designation and

wherever committed, consisting of

murder (as described in section

1111); manslaughter other than

involuntary manslaughter (as

described in section 1112); assault

with intent to commit murder (as

described in section 113(a));

assault with intent to commit rape;

aggravated sexual abuse and sexual

abuse (as described in sections 2241

and 2242); abusive sexual contact

(as described in sections 2244(a)(1)

and (a)(2)); kidnapping; aircraft

piracy (as described in section

46502 of Title 49); robbery (as

described in section 2111, 2113, or

2118); carjacking (as described in

section 2119); extortion; arson;

firearms use; or attempt,

conspiracy, or solicitation to

commit any of the above offenses;

and

(ii) any other offense

punishable by a maximum term of

imprisonment of 10 years or more

that has as an element the use,

attempted use, or threatened use of
-8-

physical force against the person of

another or that, by its nature,

involves a substantial risk that

physical force against the person of

another may be used in the course of

committing the offense;

* * *

18 U.S.C. § 3559(c)(2).

First, we consider the contention that the offenses of

conviction, attempting and conspiring to interfere with interstate

commerce by robbery, in violation of 18 U.S.C. § 1951, are not

"serious violent felonies." Here it is important to have in mind

exactly what the Hobbs Act says. Section 1951 of Title 18 states:

(a) Whoever in any way or degree

obstructs, delays, or affects commerce or the

movement of any article or commodity in

commerce, by robbery or extortion or attempts

or conspires so to do, or commits or threatens

physical violence to any person or property in

furtherance of a plan or purpose to do

anything in violation of this section [shall

be imprisoned].

(b) As used in this section --

(1) The term "robbery" means the

unlawful taking or obtaining of personal

property from the person or in the presence

of another, against his will, by means of

actual or threatened force, or violence, or

fear of injury, immediate or future, to his

person or property, . . ..

If we isolate the words of the statute relevant to this

particular case, we find that Farmer was charged with, and

convicted of, attempting and conspiring to commit or threaten

physical violence in furtherance of a plan or purpose to obstruct,

delay, or affect commerce by robbery. And robbery is defined in

§ 1951(b)(1), in terms consistent with the traditional common-law
-9-

definition, as the unlawful taking of personal property from the

person or in the presence of another by force or violence. Is this

conduct a "serious violent felony" within the meaning of 18 U.S.C.

§ 3559(c)(2)(F)? We think the answer is yes. Farmer argues that

Hobbs Act robbery is not robbery as described in §§ 2111, 2113, or

2118 of Title 18 of the United States Code. It therefore, he says,

cannot be a "serious violent felony" within the meaning of

subparagraph (i) of paragraph (F) of subsection (2). We find it

unnecessary to pass on this argument, because we think it clear

that Hobbs Act robbery qualifies as a serious violent felony under

subparagraph (ii). It is an offense punishable by a maximum term

of imprisonment of ten years or more, it has as an element the use,

attempted use, or threatened use of physical force against the

person of another, and, in addition, it involves, by its nature, a

substantial risk that physical force against the person of another

may be used in the course of committing the offense. There are

types of Hobbs Act violations, for example extortion, that may not

qualify under this definition, but extortion is not what Farmer

did. He attempted to commit robbery, a crime that, as defined in

the Hobbs Act, includes the use or threatened use of force or

violence for the purpose of unlawfully taking personal property

from the person of another. Further, robbery by its very nature

involves a substantial risk that physical force against the person

of another may be used. We have no doubt that Hobbs Act robbery

qualifies as a "serious violent felony" under subparagraph (ii).

Farmer argues additionally that robbery in his particular case

is excluded from the definition by § 3559(c)(3)(A). This paragraph

reads as follows:

(A) Robbery in certain cases. - Robbery, an

attempt, conspiracy, or solicitation to commit

robbery; or an offense described in paragraph

(2)(F)(ii) shall not serve as a basis for

sentencing under [18 U.S.C. § 3559(c)] if the

defendant establishes by clear and convincing

evidence that -
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(i) no firearm or other dangerous weapon

was used in the offense and no threat of use

of a firearm or other dangerous weapon was

involved in the offense; and

(ii) the offense did not result in death

or serious bodily injury (as defined in

section 1365) to any person.

It is true that the offense did not result in death or serious

bodily injury, but it is also true that a firearm was used in the

offense. We do not see how paragraph (A) can help Farmer in the

circumstances of this case.

What about the predicate offenses? As we have seen, they are

murder, robbery, and conspiracy to commit murder. Both murder and

robbery are specifically listed as predicate felonies in paragraph

(F)(i). That provision includes "a . . . State offense, by

whatever designation and wherever committed, consisting of

murder . . . [or] robbery . . .." Further, we have no doubt that

murder, even murder in the second degree, and robbery, as defined

in the law of Iowa, like Hobbs Act robbery, which we have already

discussed, would qualify under (ii) as crimes that in their nature

involve a substantial risk of physical injury.

IV.

Farmer also advances a number of arguments against his Hobbs

Act convictions that are entirely independent from his challenges

to the application in his case of the three-strikes law. First, he

suggests that his offense was only a garden-variety, single local

robbery, not the kind of thing Congress intended to reach in the

Hobbs Act. That statute, he correctly points out, applies only to

those who obstruct, delay, or affect interstate commerce or the

movement of any article or commodity in commerce, by robbery or

extortion. See United States v. French, 628 F.2d 1069, 1075 (8th

Cir.), cert. denied, 449 U.S. 956 (1980). We have no doubt that
-11-

Congress, when it passed the Hobbs Act, had in mind primarily

offenses with a broad impact on interstate commerce, as opposed to

local robberies normally prosecuted under state law. The important

point, though, is not what motivated Congress to pass the Hobbs

Act, but rather what the Hobbs Act says. Its words in no way

exclude prosecutions for single local robberies, so long as they

satisfy the requirement that commerce or the movement of any

article or commodity in commerce is obstructed, delayed, or

affected, always understanding that by "commerce," in this context,

is meant "interstate commerce." 

Here, the record is full of evidence that the Waterloo robbery

had an effect on interstate commerce. The main warehouse of Hy-Vee

Food Stores, Inc., is in Chariton, Iowa, but Hy-Vee sells products

that come from all 50 states and different countries throughout the

world, with 70 per cent. coming from outside Iowa. Hy-Vee has 162

food stores, 38 convenience stores, and 20 drug stores in seven

states. We have no doubt of the power of Congress to protect from

violence businesses that are part of an interstate chain. United

States v. Lopez, 115 S. Ct. 1624 (1995), invalidated a statute

making it unlawful to possess a firearm within a certain distance

from a school. We think the case has no application to cases of

commercial establishments, such as the Hy-Vee store involved here.

See id. at 1629 (Congress has the power to "protect . . . persons

or things in interstate commerce."). 

Farmer points out that some of the evidence of effect on

interstate commerce had to do with business done by the Des Moines

store, which was robbed before the effective date of the threestrikes law. This circumstance shows, he asserts, that he in fact

is being punished for conduct that occurred prior to the enactment

of the relevant statute. We think not. Evidence about the

business operations of Hy-Vee, whether in Waterloo or Des Moines,

is relevant to show the effect on commerce of an interference with

business at the Waterloo store. Farmer was not charged with
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robbing the Des Moines store, but this does not mean that evidence

as to the nature of the business done there cannot be admitted for

another purpose.

It is also suggested that the indictment is defective because

it failed to allege any effect on interstate commerce. On the

contrary, the indictment clearly alleges that "Hy-Vee Food Stores,

Inc., was engaged in the distribution and sale of food and consumer

products in commerce and in an industry which affects commerce,"

and that Farmer unlawfully obstructed, delayed, and affected

commerce "as that term is defined in Title 18, United States Code,

Section 1951 . . .." Thus, the indictment incorporated by

reference the Hobbs Act definition of "commerce": "All commerce

between any point in a State, Territory, Possession, or District of

Columbia and any point outside thereof; all commerce between points

within the same State, through any place outside such State; and

all other commerce over which the United States has jurisdiction."

18 U.S.C. § 1951(b)(3). We do not think the indictment is

defective because it failed to allege more specifically the precise

circumstances of Hy-Vee's involvement in interstate commerce. The

office of an indictment is to give notice of the offense charged,

not to plead evidence. The word "interstate," as Farmer argues,

does not appear in the indictment, but the reference to § 1951

makes it clear that "commerce," as used in that instrument, means

"interstate commerce." 

V.

Finally, Farmer makes three arguments in support of his

contention that the District Court erred in denying his motion for

a new trial. Each of these arguments has to do with evidence that

the District Court ordered the jury to disregard.

First, during the re-direct examination of Reggie Williams,

who had been charged with Farmer but subsequently pleaded guilty
-13-

and testified against him, the government asked the witness whether

Farmer had ever used drugs. Defense counsel immediately objected,

and the objection was sustained. Then, at counsel's request, the

Court instructed the jury to disregard the question. Counsel then

moved for a mistrial, which was denied. On appeal, Farmer argues

that the denial of a mistrial, and the subsequent denial of his

motion for a new trial based in part on this incident, was

reversible error.

How to handle an incident of this sort is the sort of trial

decision uniquely suited to the discretion of district judges. In

this particular case, we agree with Farmer that the question was

improper and never should have been asked. It was not relevant and

potentially quite prejudicial. However, the question was never

answered, and the Court, agreeing without hesitation with defense

counsel, instructed the jury to disregard it. In general, we

presume that such admonitions are obeyed. First of all, we think

that juries are conscientious and try their best to do what courts

tell them to do. Secondly, if every potentially prejudicial remark

or piece of evidence in every trial led to a reversal, almost no

conviction could be sustained. Life is short, and perfection is

rare. In this case, we see nothing to rebut the ordinary

assumption that juries will do as they are asked, nor do we

believe, in light of all the other evidence in this record, that

the mere asking of the question about drug use could have had any

substantial effect on the outcome of the case.

The next incident involves the testimony of Ben White. The

witness had testified that Farmer had asked him on several

occasions to assist in a robbery. One such conversation took place

in Norwalk, Iowa, between Des Moines and Waterloo. Farmer, White,

and others were at a service station. The government asked who was

involved in the conversation, and the witness testified as follows:

A. Just me and Tommie.
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Q. Just the two of you?

A. Yeah, and Michael.

Q. And Mike?

A. Yeah.

Q. What happened to the other person

that was in the car?

A. I think he went to Norwalk because

he didn't like being in the car

because we had got stopped by the

police for gasoline because it was

not paid for, so we returned back to

Norwalk and -- because I'd --

MR. PARRISH: I'm going to

object to that, your Honor. Move to

approach the bench for some --

THE COURT: I'll sustain.

Disregard anything having to do with

not paying for gasoline, ladies and

gentlemen of the jury. . . .

Again, we think the admonition to the jury was effective.

Farmer argues that the witness was allowed to testify about another

crime committed by Farmer, theft of gasoline, and that the

prejudicial effect of this evidence clearly outweighed its

probative value, so that, under Fed. R. Evid. 404(b), it should

have been excluded. The government says, to the contrary, that the

evidence was merely part of the story of the crime - attempted

robbery of the store in Waterloo - with which Farmer was charged.

The conversation took place while this crime was being discussed,

and while Farmer and others were on their way to Waterloo to commit

the crime. Perhaps the government is right about this, but, even

if it is not, we believe the District Court properly exercised its

discretion in excluding the evidence, instructing the jury to

disregard it, and denying the motion for a mistrial. As the Court

said, "I don't think it's prejudicial that it requires a mistrial,"

Tr. 623, and we believe this conclusion was within the authority of
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the trial judge.

Finally, Farmer objects to the fact that Michael Williams,

during the course of cross-examination by Farmer's lawyer,

described Farmer and another participant in the crime as "vicious."

The Court had entered an order in limine forbidding the government

to refer to the defendant as a "hardened criminal." No such

reference ever took place. Neither the government nor any witness

ever used this phrase to describe Farmer. Under vigorous crossexamination, Michael Williams was claiming that Farmer and Michael

Einfeldt had pressured him to help in the robbery. Defense counsel

was expressing skepticism about this testimony, and Michael

Williams then made the following statement:

I was trying to get out of it. If you

understood the vicious character your client

is and Michael Einfeldt is, you probably would

participate in it too . . ..

Tr. 913. Again, defense counsel moved to strike the statement from

the record and that the jury be advised to disregard it. The Court

granted this motion. This time, no motion for mistrial was made,

but the Court would presumably have denied such a motion, and we

find no fault with the Court's handling of this incident. The

witness was claiming that Farmer had forced him into committing a

crime. This claim was being challenged by Farmer's lawyer. For

the witness to express an unfavorable opinion about Farmer's

character in defense of his own conduct was entirely expectable.

We do not think that such a characterization would have had much

persuasive influence on the jury, and we hold that the District

Court did not abuse its discretion.

VI.

In short, after considering all of Farmer's arguments with the

seriousness that the penalties imposed in this case demand, we are
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convinced that no error of law and no abuse of discretion occurred

in this case.

We take this occasion to commend Farmer's appointed counsel

for his diligent service on this appeal. His briefs are literate

and commendably free of typographical errors. They set forth

verbatim the text of relevant statutes, which is a great help to

the Court.

The convictions and sentences are affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.