* Pursuant to 5 TH C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. R. 47.5.4.

1 18 U.S.C. § 1951(a) (2000). United States Court of Appeals

Fifth Circuit



## FILED

April 20, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-50462

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DONTE CHAVFUL,

Defendant - Appellant.

Appeal from the United States District Court

for the Western District of Texas

( 01-CR-412 )

Before GARWOOD, HIGGINBOTHAM, and SMITH, Circuit Judges.

PER CURIAM: *

Donte Chavful appeals his jury trial convictions for two

counts of conspiring and attempting to obstruct, delay, and affect

commerce by robbe ry in violation of the Hobbs Act, 1 and for one

count of using or carrying a firearm during a crime of violence in

violation of 18 U.S.C. § 924(c). Chavful contends that (1) the

evidence was insufficient to support his Hobbs Act convictions, (2)2

the district court allowed the indictment to be constructively

amended, and (3) the dist rict court abused its discretion by

e xcluding evidence of his prior state court acquittal, and by

admitting a letter indicating his involvement with a gang, expert

t estimony explaining the letter, and a handwriting expert’s

testimony regarding Chavful’s attempt to disguise his writing. We

AFFIRM.

I

On August 2, 1994, an airport shuttle driver was shot and

killed during an attempted robbery in San Antonio. Julius Steen,

a known gang member, was arrested on August 15 for a different

shooting, and admitted during questioning that he took part in the

shuttle driver’s shooting as well. Steen became an informant for

the state, testifying that he, along with Donte Chavful and Dwayne

Dillard, as members of the same gang, conspired to rob the airport

shuttle d river. Steen testified that Dillard drove the car,

Chavful shot the driver, and St een rode in the back seat. Texas

charged Chavful with murder, but he was acquitted.

The United States charged Chavful with conspiring and

attempting to obstruct, delay and affect commerce by robbery of the

airport shuttl e in violation of the Hobbs Act. The Hobbs Act

indictments at issue alleged that Donte Chavful:

did knowingly and willfully conspire, combine,

confederate, and agree together with others

known to the Gr and Jury to in any way and

degree obstruct, delay, and affect commerce2 United States v. Williams

, 264 F.3d 561, 5 76 (5th Cir.

2001).

3

and the movement of any article and commodity

in commerce, by robbery of the driver of a

Star Shuttle airport van - an instrumentality

o f commerce, who was then waiting beside t h e

Crocket t Hotel in San Antonio, Texas, all in

violation of Title 18, United States Code,

Section 1951.

The jury found Chavful guilty of the Hobbs Act charges and of

using or carrying a firearm during a crime of violence.

II

A

Chavful first asserts that there was insufficient evidence to

convict him of con spiring and attempting to obstruct, delay, or

affect commerce by robbery. He claims that because the indictment

alleged that he obstructed commerce by robbery of “a van - an

instrumentality of commerce,” the government was specifically

required to prove that the airport shuttle was an instrumentality

of interstate commerce. Chavful urges that the government failed

to do so, and the district court allowed him to be convicted based

on any effect on interstate commerce was erroneous.

In reviewing a challen ge to the sufficiency of evidence, we

must determine “whether, after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable

doubt.” 23 United States v. Robinson

, 119 F.3d 1205, 1212 (5th Cir.

1997).

4 Id .; 18 U.S.C. § 1951(b)(3).

5 Robinson

, 974 F.2d at 578; United States v. Hughes

, 766 F.2d

875, 879 (5th Cir. 1985); United States v. England

, 480 F.2d 1266,

1269 (5th Cir. 1973).

6 England , 480 F.2d at 1269.

4 The two essential elements of a Hobbs Act violation are (1) a

robbery, extortion, or attempted robbery or extortion, and (2) a

resulting interference wi th commerce. 3 Commerce is defined

broadly, reaching to its constitutional limit. 4 If an indictment

charges nonessential facts, the government is not required to prove

t hem to obtain and sustain a conviction. 5 “[T]he Government need

not prove all facts charged in the indictment as long as it proves

other facts charged in the indictment which do satisfy the

essential elements of the crime.” 6

Given the essential elements of the Hobbs Act violation and

the applicable caselaw, Chavful’s a rgument fails. The Hobbs Act

counts only required the government to prove an attempt and a

conspiracy to affect commerce by robbery. The indictment charged

t hat Chavful “did knowingly conspire, combine, confederate, and

agree together with others

. . . to in any way and degree obstruct,

delay, and affect commerce and the movement of any article and

commodity in commerce, by robbery of the driver of a Star Shuttle

airport van – an instrumentality of commerce.” Because an effect7 See Robinson , 974 F.2d at 578; H ughes

, 766 F.2d at 879;

England , 480 F.2d at 1269.

8 Stirone v. United States , 361 U.S. 212, 218 (1960).

9 Id . at 215-16.

5 on an instrumentality of commerce is not an element of a § 1951(a)

violation, the charge in the indictment t hat the airport shuttle

was an inst rumentality of commerce was surplusage. 7 The

government’s evidence demonstrating that various aspects of

commerce were affected by the robbery - a contention that Chavful

does not dispute on appeal - was sufficient to allow the jury to

find all essential elements of the Hobbs Act violations beyond a

reasonable doubt.

B

Chavful next asserts that the indictment was constructively

amended. He reads the indictment as charging him with affecting

only one particular type of commerce

- th e airport shuttle. He

urges that despite this limitation, the jury was allowed to convict

him upon finding that the robbery affected any type of interstate

commerce. Chavful relies on the rule established by S tirone v.

United States : “wh en only one particular kind of commerce is

charged to have been burdened[,] a conviction must rest on that

charge and not another.” 8

Once a grand jury returns an indictment, its charges may only

be broadened by the grand jury itself. 9 A corollary of this rule10 Id . at 217.

11 United States v. Millet

, 123 F.3d 268, 272 (5th Cir. 1997).

12 Id

.

13 United States v. Munoz

, 15 0 F.3d 401, 417 (5th Cir. 1998)

(quoting United States v. Salvatore

, 110 F.3d 1131, 1145 (5th Cir.

1997)) (internal citations omitted).

14 United States v. Threadgill

, 172 F.3d 357, 370 (5th C ir.

1999).

6 is that “a court cannot permit a defendant to be tried on charges

that are not made in the indictment against him.” 10 “A constructive

amendment to the indictment occurs when the jury is permitted to

convict the defendant on a factual basis that effectively modifies

an essential element of the offense charged in the indictment.” 1 1

An indictment may be constructively amended by evidence offered or

by jury instructions. 12 However, “[n]ot every variance between the

indict ment’s allegations and proof at trial engenders a

constructive amendment. For example, no constructive amendment

arises ‘where the evidence proves facts different from those

alleged in the indictment, but does not modify an essential element

of the charged offense.’” 13 If a constructive amendment occurs, the

conviction must generally be reversed. 14

To find a constructive amendment here, the evidence adduced at

trial or the jury instructions must have permitted the jury to

convict Chavful on a factual basis that effectively m odified the15 Millet , 123 F.3d at 272-73.

16 Stirone , 361 U.S. at 218.

7 essential elements of the Hobbs Act charges. 15 Contrary to

Chavful’s assertion, the indictment did n ot charge that only one

particular kind of commerce was affected; instead, it charged that

Chavful did [conspire and attempt to] “in any way and degree

obstruct, delay, and affect commerce and th e movement of any

article or commodity in commerce, b y robbery of the driver of a

Star Shuttle airport van

- an instrumentality of commerce.” Unlike

the indictment in Stirone

, which charged that the defendant’s

extortion affected on e specific commodity in commerce, Chavful’s

indictment clearly charged that commerce in general was affected by

his robbery of the airport shuttle. This indictment limits the

government to proving an effect on commerce as a result of the

robbery of the shuttle, and the evidence and jury instructions

stayed true to this limitation. Accordingly, the latter part of

the Stirone rule applies: “under an indictment drawn in general

terms[,] a conviction might rest upon a showing that commerce of

one kind or another had been burdened.” 16 Neither the evidence of

the robbery’s affect on various aspects of interstate commerce nor

the jury instructions constructively amended the indictment.

C

F inally, Chavful argues that the judge erroneously admitt e d

into evidence (1) a letter Chavful wrote that demonstrates his17 United States v. Elwood

, 999 F.2d 814, 816 (5th Cir. 1993).

18 Id.

19 F ED

. R. E VID . 401.

20 F ED

. R. E VID . 403.

8 affiliation with a gang and refers to the people involved in the

conspiracy, (2) an expert’s testimony exp laining elements of the

letter, and (3) a handwriting expert’s testimony that Chavful

disguised his handwriting in samples given to the FBI. Chavful

asserts that this evidence was irrelevant, and assuming relevancy,

was unfairly prejudicial. Chavful also asserts that the Judge erred

in refusing to admit evidence of his prior state acquittal.

Considering the charges, Chavful’s assertions at trial, an d the

nature of the evidence admitted, there is no reversible error.

We review evidentiary rulings under a deferential standard. 17

Reversal is warranted only when the admission constituted an abuse

of discretion. 18 Evidence is relevant if it has “any tendency to

make the existence of any fact that is of consequen ce to the

determination of the action more probable or less probable than it

would be without the evidence.” 19 Otherwise relevant evidence “may

be excluded if its probative value is substantially outweighed by

the danger of unfair prejudice, confusion of the issues, or

misleading the jury.” 20 The trial judge has broad discretion over

determinations of relevance under Federal Rule of Evidence 401 and21 United States v. Madera

, 574 F.2d 1320, 132 2 (5th Cir.

1978).

9 unfair prejudice or confusion under Federal Rule of Evidence 403. 21

The gang letter was probative of Chav ful’s association with

other members of the conspiracy. It also served to rebut Chavful’s

attempt to distance himself from the gang and the other members of

the conspiracy. Chavful asserts that the letter’s admission was

unfairly prejudicial because the letter includes violent and

obscene language, racial slurs, and threats. While the language of

the letter was prejudicial to Chavful, it was n ot unfairly

prejudicial. Chavful does not dispute that he wrote the letter,

and the letter clearly serves to associate him with the gang and

other members of the conspiracy. Finally, the district court gave

extensive limiting instructions to the jury, explaining that gang

membership was not inherently bad and that gang membership was not

an issue in the case. The highly probative value of the evidence,

coupled wit h the judge’s limiting instructions, belies Chavful’s

assertion that the evidence’s relevance is substantially outweighed

by its unfair prejudice. Under these circumstances, the court did

not abuse its discretion.

Second, Chavful asserts that the gang expert’s testimony was

irrelevant because the letter itself was irrelevant. This argument

fails for the reasons above. Furthermore, the letter included

various slang terms that would be meaningless without the22 See United States v. Stembridge

, 477 F.2d 874, 876 (5th Cir.

1973); see also United States v. Jacobowitz

, 877 F.2d 162, 169 (2d

Cir. 1989).

10 assistance of an expert’s explanation. The judge did not abuse his

discretion by admitting t he testimony; its relevance was not

substantially outweighed by the danger of unfair prejudice.

Third , Chavful contests the admission of the handwriting

expert’s testimony regarding his attempt to disguise his

handwriting. He claims that because there was no dispute that he

wrote the lette r, the expert’s testimony was irrelevant and was

included only to inflame the jury. However, under our caselaw, a

jury may consider attempted disguise as demonstrating a defendant’s

consciousness of guilt. 2 2 Chavful does not respond to this

authority. Even assuming that the district court abused its

discretion by admitting the testimony, any error would be harmless.

The government presented a sig nificant amount of evidence

demonstrating Chavful’s involvement in the robbery and his

association with the coconspirators.

Finall y, Chavful argues that the court erred in excluding

evidence of his prior acquittal. Based on the following evidence

and events put before the jury, he asserts that his presumption of

innocence was improperly eroded: (1) two jurors saw him in

handcuf fs; (2) during his testimony, Steen referred to an event

that occurred “after Chavful’s trial,” which Chavful views as

implying that he was tried and convicted in state court; (3) the23 See Estelle v. Williams , 425 U.S. 501, 503-04 (1976).

24 Id . at 504.

25 Id . at 504-505, 512-13.

26 U nited States v. De La Rosa

, 171 F.3d 215, 219 (5th C ir.

1999).

11 person who obtained the gang letter testified that she got it from

an inmate who had received it from Chavful, which Chavful views as

implying his incarceration froma conviction; and (4) a sheriff

testified that Chavful had a visitation list at the prison.

His argument is without merit. It is axiomatic that a

criminal defendant has a constitutional right to a presumption of

innocence. 23 The Court has left trial judges to determine what

evidence and procedures may erode the presumption “based on reason,

principle, and common human experience.” 24 Courts have found the

presumption impermissibly eroded by requiring a defendant to wear

prison at tire throughout the trial. 2 5 However, the nature of the

evidence at issue here did not rebut the presumption of innocence.

Contrary to Chavful’s assertion, the court did not abuse its

d iscretion by refusing to admit evidence of Chavful’s acquittal

because the evidence at issue did not rebut the presumption of

innocense. As we explained in United States v. De La Rosa , “as a

general matter, a trial court does not abuse its discretion in

excluding evidence of a prior acquittal on a related charge.” 26 We

noted that evidence of acquittal is irrelevant to the defendant’s27 Id . at 219-20.

12

i nnocence, is unexempted hearsay, and any relevance may be

outweighed by the danger of unfair prejudice and jury confusion. 27

Chavful does not cite any authority explaining why De La Rosa ’s

general rule should not control. Moreover, other evidence

illustrates that any burden on Chavful’s presumption of innocence

must have been n eutralized. Evidence before the jury clearly

showed that Chavful m ust have been acquitted in state court.

Namely, there was evidence that he was visiting people outside of

jail between the crime at issue and the fede ral trial; the only

implication is that if they knew a state trial occurred, Chavful

must have been acquitted.

III

For these reasons, Chavful’s convictions are AFFIRMED.