*Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 00-41110

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KENNETH A. TATUM

Defendant-Appellant.

 

Appeal from the United States District Court

for the Eastern District of Texas

(99-CR-164)

 

December 14, 2001

Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:*

Kenneth A. Tatum was convicted of murdering two men with a

firearm in connection with two armed robberies. He brings numerous

challenges to his conviction, including a Commerce Clause-based

challenge to federal jurisdiction over these assertedly local

crimes. We affirm.

I

On May 26, 1999, a federal grand jury indicted Tatum on two

counts. Count One alleges the armed bank robbery of the First State
1 United States v. Cathey, 259 F.3d 365, 368 (5th Cir. 2001).

2 Id.

2

Bank in Overton, Texas, resulting in death in violation of 18

U.S.C. § 2113(a), (d), and (e). Count Two alleges that Tatum used

or carried a firearm during and in relation to a crime of

violence—the robbery of Ely and and attempted robbery of Dusek’s

Auto Sales. Jury selection began on July 31, 2000 in Tatum’s case,

and trial testimony began on August 21, 2000. The jury found him

guilty on both counts, and on September 7, 2000 he was sentenced to

life in prison without the possibility of release. Tatum filed a

timely notice of appeal.

II

- 1 -

Tatum first argues that his conviction for attempted robbery

resulting in death should be overturned because the government

failed to prove that the deposits of the First State Bank of

Overton were insured by the Federal Deposit Insurance Corporation

(FDIC) on November 4, 1998. In evaluating the sufficiency of the

evidence, this court asks whether a reasonable trier of fact could

have found that the evidence established the essential elements of

the crime beyond a reasonable doubt.1 We consider the evidence in

the light most favorable to the verdict, drawing all reasonable

inferences in favor of the verdict.2 We review jury verdicts with

great deference and will not supplant the jury's determination of
3 United States v. McCauley, 253 F.3d 815, 819 (5th Cir.

2001).

4 18 U.S.C. § 2113(a), (f).

5 United States v. Guerrero, 169 F.3d 933, 944 (5th Cir.

1999).

6 Id.

3

credibility with that of our own.3

The federal bank robbery statute under which Tatum was

convicted defines a "bank" as one whose deposits are insured by the

FDIC.4 Proof that the institution meets this definition of “bank”

at the time of the robbery is an essential element of the offense

that must be proven beyond a reasonable doubt to establish federal

jurisdiction.5

At trial, the bank president testified that the First State

Bank is insured by the FDIC and that the bank pays quarterly

assessments to the FDIC. The government also introduced into

evidence a copy of a certificate that indicated that the bank is

insured by the FDIC, as well as photos of the interior of the bank

showing an FDIC notice on display in the bank. Tatum argues that

this evidence is insufficient to prove the bank’s insured status at

the time of the robbery. The evidence is sufficient under our

precedents, even without specific testimony that the bank was

federally insured at the time of the robbery.6

- 2 -

Tatum also argues that even if there was sufficient proof of
7 Stephens died before he could be charged.

4

the bank’s insured status, the evidence was insufficient to sustain

his conviction under Count 1. From the evidence we conclude that a

reasonable juror could have believed beyond a reasonable doubt that

Tatum committed the offense. We recount here the evidence amassed

at trial against him. In November 1998, the First State Bank in

Overton, Texas was robbed at gunpoint and bank president Ronnie

Ritch was kidnaped. He was found dead the next morning in a remote

ditch, shot three times, including a shot to the back of the head.

His tie was missing and a beer can was found next to his body. His

car was found in a cemetery in Kilgore, Texas. About one month

later, during an attempted robbery of Dusek’s Auto Sales in

Longview, Texas, a robber shot employee Robert Ely in the chest.

His wallet was missing when he was found.

Following an unrelated bank robbery, Charles Stephens was

apprehended by police.7 Officers found Ely’s missing wallet on

Stephens, and found a .38 caliber revolver in his car. Ballistics

tests showed that the revolver was the same one used to kill Ritch

and Ely. At around the same time, Tatum began telling fellow

inmates about his role in the murders of Ritch and Ely. Tatum told

Lamonte Bond that he went with “Chuck” to a car dealership in

Longview, where Chuck shot someone and didn’t get any money out of

the deal. Tatum also told Bond about attempting to rob a bank in

Overton. He said that they waited behind the bank, grabbed a man
5

coming out, and tried to have him open the bank’s safe, but it was

on a time lock until morning. Tatum said that they drove the man

around, took him to a cemetery, and then Chuck killed him.

Sedrick Murry, a long-time friend of Tatum and Stephens, also

testified at trial under a grant of immunity. Murry testified that

Stephens tried to recruit him and Tatum to participate in the

Overton bank robbery, but Murry refused. Murry stated that after

the robbery Tatum told him that they had grabbed a man coming out

of the bank and asked him to open the vault, which he was unable to

do. They then took him out in the woods, and Stephens shot him in

the head. Tatum also told Murry about the car lot robbery. He said

that Stephens pretended to be looking for a car, entered the

office, asked for money, and when the man refused, Stephens shot

him in the chest. Murry identified the .38 revolver as Tatum’s and

a semiautomatic weapon as Stephen’s.

John Walsh was also incarcerated with Tatum. Tatum asked Walsh

how to escape the death sentence on a capital murder charge, and

told him about the kidnaping and murder of Ritch and the robbery

and murder of Ely. Walsh contacted the FBI, and an agent told him

not to question Tatum but to listen and report anything Tatum said

about the crimes. Later, Tatum told Walsh how he and Stephens

waited behind the bank and pulled a gun on Ritch when he came out.

Tatum said that the vault was on a timer and could not be opened,

and that Ritch was unable to get money for them from the night

deposit. Ritch tried and failed to escape, but when Stephens
6

attempted to shoot him his gun did not fire. Walsh said that Ritch

promised them money in the morning when the vault could be opened

but asked to leave a message for his deaf wife, but that Tatum

blindfolded Ritch with his tie and he and Stephens drove Ritch out

into the country. According to Walsh, Tatum said that Stephens got

Ritch out of the car, shot him, and left his body in a ditch. Tatum

also told Walsh about the car lot robbery, stating that Stephens

asked to use the phone and the restroom before pulling a gun and

asking for money. When Ely said that there was no money, Stephens

shot Ely and Tatum took Ely’s wallet. Tatum told Walsh that he

burned all the clothes he wore that day, except for his shoes, in

the trash pile behind his grandparents’ house. Walsh agreed to

record his next conversation with Tatum, and Tatum once again

discussed the crimes with Walsh. Although Walsh knew where the

microphones were located, they did not function properly and the

conversation was only partially recorded. The entire conversation

was videotaped, and Tatum is seen drawing a diagram of the Overton

bank as he reenacted the crime to Walsh.

Agents went to Tatum’s home, and searched the burn pile in his

yard with his mother’s consent. They found keys that matched those

missing from Ritch. They also interviewed Tatum, showing him the

diagram he drew and telling him that others had revealed his

admissions about the crimes. In the videotaped interview, Ritch

denied any involvement in the murders but mentioned putting a tie

around Ritch’s face, a fact about the crime that was not public at
7

the time. Other evidence was uncovered linking Tatum to the crimes,

including DNA from Ritch that was found on a pair of Stephens’

jeans, fingerprints from both Stephens and Tatum on a blue plastic

bag found at the scene of Ely’s murder, and fibers on Ritch’s

clothing that were consistent with the carpet in Stephens’ car.

Tatum claims that there is no physical evidence linking him to

the murder of Ritch, aside from the set of Ritch’s keys recovered

from a burn pile located behind his house. There is evidence of

Tatum’s participation. Sedrick Murry, a friend of Tatum, identified

the murder weapon as Tatum’s gun. Murry and two other witnesses

each testified that Tatum had admitted involvement in the attempted

bank robbery and murder of Ritch. One of these other witnesses,

fellow inmate John Walsh, testified that Tatum drew a diagram of

the bank and acted out what happened. This meeting was videotaped,

and portions of the videotape were played in the trial, as Walsh

testified. Tatum also mentioned to the case agent that Ritch’s

necktie was tied around his face, a detail of the crime that was

not known to the public at the time.

III

- 1 -

Tatum also argues that there is insufficient evidence to

sustain the verdict on Count 2. We are not persuaded. To the

contrary, the evidence implicating Tatum in this crime is

compelling.

Tatum’s fingerprints were found on a plastic bag at the murder
8 18 U.S.C. § 1111(b).

9 Appellant’s Br. at 18.

8

scene that was spattered with Ely’s blood, and the murder weapon

was identified as his gun. Three witnesses also testified that he

confessed to them, and the angle of Ely’s gunshot wound matched the

story recounted by these witnesses. In his videotaped conversation

with Walsh, Tatum wrote the number 80 on a diagram that

corresponded to the location of Dusek’s Auto Sales on Highway 80.

Moreover, Ely’s wallet and credit cards were found in Stephens’

possession, and evidence placed Tatum with Stephens on the night of

the murder. There was sufficient evidence to support the jury’s

verdict.

- 2 -

Tatum also urges that 18 U.S.C. § 1111 requires the government

to prove that the killing in Count 2 occurred within “the special

maritime and territorial jurisdiction of the United States.”8 He

mistakenly reads Section 1111(b) to mandate that death or life

imprisonment can only be imposed when a murder occurs within the

special maritime and territorial jurisdiction of the United

States.9 Section 1111(b) merely provides minimum sentences for

murders that occur within the special maritime and territorial

jurisdiction of the United States, and these minimum sentences are

not part of the definition of murder found in 18 U.S.C. § 1111(a).
10 The Fourth Circuit has also considered this argument and

reached a similar conclusion. United States v. Young, 248 F.3d 260,

274-75 (4th Cir. 2001).

11 Cozzo v. Tangipahoa Parish Council-President Gov’t, 262 F.3d

501, 520 (5th Cir. 2001).

12 Id.

9

Tatum’s argument is frivolous and requires no further analysis.10

Tatum also claims that his theory of “special maritime and

territorial jurisdiction” should have been presented to the jury,

thereby challenging the jury instructions given by the district

court. This court reviews challenges to jury instructions for abuse

of discretion.11 Because of the broad discretion afforded district

courts in framing the instructions to the jury, we will find an

abuse of discretion only if the charge as a whole is not a correct

statement of the law and does not clearly instruct the jurors

regarding the legal principles applicable to the factual issues

before them.12 Tatum’s argument is without merit and is based upon

a misreading of 18 U.S.C. § 1111. The district court did not abuse

its discretion.

- 3 -

Tatum also challenges his conviction for carrying a firearm

during and in relation to a crime of violence charged in Count 2,

arguing that the Hobbs Act robbery charged as the predicate crime

of violence was not sufficiently connected to interstate commerce

and thus did not “obstruct, delay, and affect and attempt to

obstruct, delay, and affect commerce” in violation of the Hobbs
13 18 U.S.C. § 1951.

14 United States v. Jennings, 195 F.3d 795, 800 (5th Cir.

1999).

15 514 U.S. 549 (1995).

16 See, e.g., Jennings, 195 F.3d at 800; United States v.

Robinson, 119 F.3d 1205, 1208 (5th Cir. 1997).

17 Cozzo, 262 F.3d at 520.

10

Act.13 We review constitutional challenges de novo.

14

Tatum asserts that his taking of Ely’s wallet did not have a

direct effect on interstate commerce, and argues that United States

v. Lopez15 requires the government to show that the robbery had a

substantial effect on interstate commerce to justify the

application of the Hobbs Act. This court has rejected this

argument, holding that the government must merely demonstrate that

the actions have a de minimus nexus to interstate commerce if they

are of a type that, repeated many times over, would have a

“substantial effect” on interstate commerce.16

The jury was instructed that it did not have to find a

substantial effect upon interstate commerce in order to return a

guilty verdict for Count 2. The trial judge told the jury that as

long as the crime had “any effect at all on interstate commerce,”

the commerce element of the Hobbs Act was satisfied. Tatum

challenges this jury instruction. As stated, this court reviews

challenges to jury instructions for abuse of discretion.17

The district court did not abuse its discretion by instructing
18 Robinson, 119 F.3d at 1214; see United States v. Hickman,

179 F.3d 230, 231 (5th Cir. 1999) (en banc).

19 United States v. Sharpe, 193 F.3d 852, 866 (5th Cir. 1999).

11

the jury that the effect of the robbery on interstate commerce must

only be minimal. That instruction is correct, given that this Court

held in Robinson that robberies can be aggregated under the Hobbs

Act to satisfy the constitutional demand of a substantial effect on

commerce.18 Even the minimal impact upon interstate commerce of a

single crime is sufficient for Hobbs Act purposes under the law of

this Circuit, and Tatum’s challenge fails.

IV

Tatum next claims that Count 2 is duplicitous because it joins

two distinct offenses—the robbery of Ely and the attempted robbery

of Dusek’s Auto Sales—in a single count. Count 2 charges Tatum with

a violation of 18 U.S.C. § 924(j), a firearms murder during or in

relation to a violent crime. The two “distinct offenses” are in

fact predicate offenses for the Section 924(j) offense. We assess

the indictment to determine whether it can be read to charge only

one violation in each count.19

In this case, there is only one crime—a firearms murder during

or in relation to a violent crime. The violent crime that serves as

the predicate offense is a single, continuing scheme: an attempt to

rob Dusek’s Auto Sales. The robbery of Ely was part and parcel of

this scheme. There is no duplicity.
20 United States v. Wyly, 193 F.3d 289, 298 (5th Cir. 1999).

12

Tatum also argues that the jury should have been permitted to

choose between robbery and attempted robbery in Count 2. This

argument is similarly without merit, and the district court did not

abuse its discretion.

V

- 1 -

Tatum further claims that the district court erred by denying

his motion for mistrial based upon the admission of out-of-court

statements made by a deceased co-defendant (Stephens). The district

court admitted them as statements made in furtherance of a

conspiracy and statements against interest. We review the district

court’s denial of a motion for mistrial for an abuse of

discretion.20

The statements that Tatum sought to exclude were made by

Stephens to Murry, asking him to be their driver in the bank

robbery and relating details about the robbery to him. Stephens

showed Murry the bank and discussed a possible escape route, showed

Murry a fake dollar bill that had belonged to Ritch, and stated

that he had a blood spot on his pants. Stephens also told Murry

about the car lot robbery, and identified their weapons to him.

The district court found that several of Stephens’ statements

were admissible as statements made in furtherance of his conspiracy

with Tatum, under Rule 801(d)(2)(e). Under Rule 801(d)(2)(e), the
21 United States v. Cornett, 195 F.3d 776, 782 (5th Cir. 1999).

13

proponent of a statement must prove by a preponderance of the

evidence (1) the existence of the conspiracy, (2) the statement was

made by a co-conspirator of the party, (3) the statement was made

during the course of the conspiracy, and (4) the statement was made

in furtherance of the conspiracy.21

Tatum admits that some statements made by Stephens to Murry

were made in furtherance of the conspiracy, and that other

statements made by Stephens were admissible as statements against

interest under Rule 804(b)(3). He merely argues that Stephens’

statements that do not fit either of these exceptions were

inadmissable. That statement is indeed true, but Tatum fails to

provide any specific statements that were not in furtherance of the

conspiracy or against Stephens’ interest. The only specific

statement challenged by defense counsel at trial was Stephens’

identification of Tatum’s weapon, but this error is harmless given

that Tatum acknowledged the same information. The district court

did not abuse its discretion.

- 2 -

Additionally, Tatum claims that the district court erred by

denying his motion to suppress evidence found during a search of

his automobile and the burn pile behind his house. We review the

district court's findings of fact supporting the denial of a motion

to suppress under a clearly erroneous standard and review the
22 United States v. Singh, 261 F.3d 530, 535 (5th Cir 2001).

23 Illinois v. Rodriguez, 497 U.S. 177, 181 (1990).

24 United States v. Matlock, 415 U.S. 164, 171 (1974).

14

district court's conclusions of law de novo.

22

Although the Fourth Amendment prohibits the warrantless entry

of a person’s home, the prohibition does not apply to situations in

which voluntary consent has been obtained, either from the

individual whose property is searched or from a third party who

possesses common authority over the premises.23 The police obtained

permission to search the premises from Tatum’s mother, with whom

Appellant lived. Although Tatum claims that his mother was under

duress when she consented to the search, he provided no evidence to

support this claim. Tatum admits that his mother signed a form that

consented to the search, and the mother’s authority to consent is

undisputed.24 Tatum also challenges the search warrant that was

issued for his automobile, as well as the officers’ good faith

reliance upon a facially valid warrant. We review these challenges

de novo, and conclude that Tatum’s arguments are without merit.

- 3 -

Tatum also challenges the voluntariness of his confession to

Walsh. A confession is voluntary if it is the product of the

defendant's free and rational choice. It is voluntary in the

absence of official overreaching, either by direct coercion or
25 United States v. Mullin, 178 F.3d 334, 342 (5th Cir. 1999).

26 Id.

27 Id.

28 496 U.S. 292, 296 (1990).

15

subtle psychological persuasion.25 Whether a confession is voluntary

is determined by considering the totality of the circumstances.26

In reviewing a ruling on a motion to suppress a confession, we give

credence to the credibility choices and fact finding by the

district court unless they are clearly erroneous. The ultimate

issue of voluntariness is a legal question reviewed de novo.

27

Tatum initiated the conversation with Walsh, and Walsh was

instructed by officers not to question Tatum about the crimes or

solicit any further information. Tatum was not coerced to continue

his conversations with Walsh, which he could have ended at any

time. Tatum has presented no evidence to suggest that his

confession was involuntary.

Tatum also claims that Walsh could not speak with him until

Tatum received Miranda warnings and waived his rights. This

argument is foreclosed by the Supreme Court’s decision in Illinois

v. Perkins.

28 Tatum’s argument that Walsh was recruited as a

government agent is also without merit. Walsh approached the

officers after Tatum began speaking to him. Similarly, Tatum’s

Sixth Amendment right to counsel was not improperly interfered

with. The Sixth Amendment right to counsel attaches only to charged
29 Texas v. Cobb, 532 U.S. 162 (2001).

16

offenses and does not attach until a prosecution is commenced.29

Tatum’s final argument, that the district court abused its

discretion by denying his motion to admit testimony establishing

that a government witness was deceptive on a FBI polygraph

examination, is also without merit.

VI

For the foregoing reasons, we AFFIRM Tatum’s convictions.