UNITED STATES of America, Plaintiff–Appellee, v. Jordon FORD (11–1917); Jasper Perdue (11–1926); Tyrone Nathan (11–2015); Wilnell Henry (11–2200), Defendants–Appellants.
Nos. 11–1917, 11–1926, 11–2015, 11–2200.
Before MOORE, GIBBONS, and SUTTON, Circuit Judges. ARGUED:Gary W. Crim, Dayton, Ohio, for Appellant in 11–1917. Kevin M. Schad, Federal Public Defender's Office, Cincinnati, Ohio, for Appellant in 11–1926. Michael R. Bartish, Springstead & Bartish, Law, P.L.L.C., Grand Rapids, Michigan, for Appellant in 11–2015. Timothy J. McKenna, Timothy J. McKenna, LLC, Cincinnati, Ohio, for Appellant in 11–2200. Sean C. Maltbie, United States Attorney's Office, Grand Rapids, Michigan, for Appellee. ON BRIEF:Gary W. Crim, Dayton, Ohio, for Appellant in 11–1917. Kevin M. Schad, Federal Public Defender's Office, Cincinnati, Ohio, for Appellant in 11–1926. Michael R. Bartish, Springstead & Bartish, Law, P.L.L.C., Grand Rapids, Michigan, for Appellant in 11–2015. Renée Paradis, San Francisco, California, for Appellant in 11–2200. Sean C. Maltbie, United States Attorney's Office, Grand Rapids, Michigan, for Appellee.
This consolidated appeal arises from the convictions and sentencing of Jordon Ford ("Ford"), Jasper Perdue ("Perdue"), Tyrone Nathan ("Nathan"), and Wilnell Henry ("Henry") for crimes arising from their involvement in a conspiracy to commit a series of armed robberies in the Lansing, Michigan area, between February 2009 and October 2009. We address each of their arguments in turn. For the reasons set forth below, we AFFIRM.
The grand jury returned an indictment against Ford, Perdue, Nathan, and Henry on March 31, 2010. R. 1 (Indictment at 1) (Page ID # 1). A superseding indictment was returned on June 30, 2010. Each defendant was charged with one count of conspiracy to commit robbery affecting commerce in violation of 18 U.S.C. § 1951;1 multiple counts of robbery affecting interstate commerce in violation of 18 U.S.C. §§ 1951 and 2;2 and multiple counts of possessing and brandishing or discharging a firearm in furtherance of both the conspiracy and a robbery count in violation of 18 U.S.C. §§ 924(c) and 2.3 R. 77 (Superseding Indictment) (Page ID # 129). After a joint trial, Ford and Perdue were convicted of all charges .4 R. 190 (Jury Verdict) (Page ID # 642). Ford was sentenced to 1,392 months of imprisonment, R. 255 (Ford Sent. Tr.) (Page ID # 2886, 2913), and now appeals his conviction and his sentence. Perdue was sentenced to 1,464 months of imprisonment, R. 256 (Perdue Sent. Tr.) (Page ID # 2920, 2943), and now appeals his conviction and his sentence. Defendant Nathan pleaded guilty to conspiracy to commit robbery affecting commerce. R. 129 (Nathan Am. Plea) (Page ID # 251). He was sentenced to 168 months of imprisonment, R. 273 (Nathan Sent. Tr.) (Page ID # 3053, 3094), and now appeals his sentence. Defendant Henry pleaded guilty to conspiracy to commit robbery affecting commerce. He was sentenced to 150 months of imprisonment, R. 291 (Henry Sent. Tr.) (Page ID # 3172, 3201), and now appeals his sentence.
The district court had jurisdiction pursuant to 18 U.S.C. § 3231. This court has jurisdiction over the appeals pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
Ford and Perdue both challenge the admission of evidence regarding their gang affiliation and the impact of the robbery on a witness to the crime.
Federal Rule of Evidence 401 provides that "[e]vidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Fed.R.Evid. 401. Federal Rule of Evidence 403 provides that "[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of ․ unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed.R.Evid. 403. "Unfair prejudice 'does not mean the damage to a defendant's case that results from the legitimate probative force of the evidence; rather it refers to evidence which tends to suggest decision on an improper basis.' " United States v. Gibbs, 182 F.3d 408, 430 (6th Cir.1999) (quoting United States v. Bonds, 12 F.3d 540, 567 (6th Cir.1993)).
We review a district court's evidentiary rulings for an abuse of discretion. United States v. Fisher, 648 F.3d 442, 449 (6th Cir .2011). "[W]e will reverse a district court's evidentiary decisions only where the 'abuse of discretion has caused more than harmless error.' " Id. (quoting United States v. Johnson, 440 F.3d 832, 847 (6th Cir.2006)). "Under harmless error analysis, reversal is warranted only if the instruction affected a substantial right of the defendants." Gibbs, 182 F.3d at 428 (citing Fed.R.Crim.P. 52(a)).
Ford and Perdue both argue that the district court abused its discretion by permitting the government to introduce evidence of their affiliation with the Vice Lords gang.5 Both filed pre-trial motions in limine asking the court to exclude evidence of Vice Lords membership, arguing that it is not relevant and, if relevant, the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.6 R. 167 (Ford Mot. in Limine at 1) (Page ID # 472); R. 161 (Perdue Mot. in Limine at 1) (Page ID # 461). The district court denied the motion. R. 200 (Trial Tr. at 12–14) (Page ID # 674–76).
Evidence of gang affiliation is relevant where it demonstrates the relationship between people and that relationship is an issue in the case, such as in a conspiracy case. See United States v. Williams, 158 F. App'x 651, 653–34 (6th Cir.2005); Gibbs, 182 F.3d at 429–30. However, gang affiliation evidence "is inadmissible if there is no connection between the gang evidence and the charged offense." United States v. Anderson, 333 F. App'x 17, 24 (6th Cir.2009); see also United States v. Newsom, 452 F.3d 593, 602–04 (6th Cir.2006) (holding that evidence of a gang tattoo was not relevant when the sole charge was being a felon in possession of a firearm). It was not an abuse of discretion for the district court to allow the introduction of evidence of Ford's and Perdue's gang affiliation. The evidence of gang affiliation is relevant because it demonstrates the relationship amongst the co-conspirators. Specifically, the evidence furthered the Government's theory that the co-conspirators were a distinct subset of the many people involved in the Fallen Angels record label and that the bond between the subset was their involvement in the Vice Lords. The probative value of the testimony that Ford and Perdue were involved in the Vice Lords was not outweighed by the danger of unfair prejudice. Accordingly, we hold that the district court did not abuse its discretion by admitting evidence of Ford's and Perdue's gang affiliation.
Ford and Perdue argue that the district court abused its discretion by allowing a robbery witness to testify about how she was impacted by witnessing the Mario's Market robbery. At trial, when the Assistant United States Attorney asked the witness if the robbery had any effect on her, counsel for Ford objected on the basis of relevance;8 the court permitted the testimony, stating that "if we don't go too far, it's relevant. The government has to show interference with commerce, and one way to do that is to indicate the effect it has on people." R. 202 (Trial Tr. at 118) (Page ID # 1268). The witness proceeded to testify that she was "nervous going into stores, taking my kids into stores. I didn't know if it would happen again." Id. Perdue argues that the introduction of this evidence is "especially egregious" because before trial the parties stipulated that the robberies affected interstate commerce. R. 188 (Stipulation at 1–2) (Page ID # 639–40).
Ford and Perdue were both charged with multiple counts of conspiracy to commit robbery affecting commerce in violation of 18 U .S.C. § 1951. An element of this offense is interference with interstate commerce. This element is satisfied by a showing of even a de minimis effect on interstate commerce. United States v. Baylor, 517 F.3d 899, 902 (6th Cir.2008) (holding that the interstate commerce element was satisfied through evidence that a restaurant that was robbed routinely purchased and used ingredients from other states). However, this witness did not testify that she altered her shopping practices as a result of the robbery—she testified only to her emotional state when entering stores. The government offers no authority to establish that a crime witness's feelings of nervousness when entering stores after witnessing a robbery in a store is relevant to the element of interstate commerce. Although most stores engage in interstate commerce by purchasing items from other states, the government did not introduce any evidence that the stores in which she felt nervous did, in fact, engage in interstate commerce. Evidence is relevant if it has "any tendency to make a fact more or less probable than it would be without the evidence," Fed.R.Evid. 401 (emphasis added), but even under this expansive understanding of relevance, the connection of this evidence to the element of interstate commerce is rather attenuated.
Nonetheless, even assuming that introduction of this evidence was in error, we conclude that any error was harmless. " '[A]n error which is not of constitutional dimension is harmless unless it is more probable than not that the error materially affected the verdict.' " United States v. Davis, 577 F.3d 660, 670 (6th Cir .2009) (quoting United States v. Childs, 539 F.3d 552, 559 (6th Cir.2008)). Because Ford and Perdue stipulated that the interference with interstate commerce element was satisfied and because the testimony was not substantially prejudicial or inflammatory, any error in admitting this evidence did not materially affect the verdict. Therefore, the district court did not abuse its discretion by allowing testimony of the effect of the robbery on a witness to that crime.
Perdue challenges the district court's limitation on his cross-examination of a government witness regarding his exculpatory out-of-court statements as a violation of the Confrontation Clause. Ford challenges the introduction of non-testifying codefendant Perdue's out-of-court statement.
Perdue argues that the district court abused its discretion by limiting his cross-examination of FBI Special Agent Plantz ("Plantz"), who testified to Perdue's inculpatory out-of-court statements. Plantz testified that Perdue admitted that he was involved in the Mount Hope robbery, but only as a lookout. R. 206 (Trial Tr. at 160 (Page ID # 2231). We review for abuse of discretion a challenge to the district court's evidentiary rulings, even on Confrontation Clause grounds. United States v. Holden, 557 F.3d 698, 703 (6th Cir.2009). "It is an abuse of discretion for a district court to commit legal error or find clearly erroneous facts." Id.
On cross-examination, Perdue attempted to elicit testimony regarding his exculpatory out-of-court statements, but the district court sustained the government's objections to these questions on the basis of hearsay. Defense counsel asked Plantz if Perdue had identified an individual in a photo and admitted that it was him; the Assistant U.S. Attorney objected, and the court sustained the objection. R. 206 (Trial Tr. at 167–68 (Page ID # 2238–39). Defense counsel later asked Plantz, "[Perdue] never admitted to you that he shot that clerk, did he?" The government objected, and the court again sustained the objection on hearsay grounds. Id. at 170–71 (Page ID # 2241–42). Perdue argues that he should have been allowed to introduce his statements under the Confrontation Clause and the rule of completeness. Because the statements that Perdue attempted to introduce were hearsay not within any exception, the district court did not abuse its discretion by limiting the scope of Perdue's cross-examination.
Out-of-court statements made by a party-opponent are an exception to the general hearsay rule. Fed.R.Evid. 801(d)(2). This exception reflects that "the adversarial process allows the party-declarant to rebut his or her own admissions by testifying at trial." United States v. McDaniel, 398 F.3d 540, 545 (6th Cir.2005). This hearsay exception does not, however, "extend to a party's attempt to introduce his or her own statements through the testimony of other witnesses." Id. " 'An essential component of the confrontation clause is the accused's right to cross-examine the state's witnesses.' " United States v. Payne, 437 F.3d 540, 547–48 (6th Cir.2006) (quoting Miskel v. Karnes, 397 F.3d 446, 452 (6th Cir.2005)). " 'However, the right to cross-examine is not absolute.' " Id. at 548 (quoting United States v. Beverly, 369 F.3d 516, 535 (6th Cir.2004), cert. denied, 543 U .S. 910 (2004)). Precluding a defendant from eliciting inadmissible hearsay statements does not violate the Confrontation Clause. See United States v. Ortega, 203 F.3d 675, 682–83 (9th Cir.2000). Therefore, the district court's limitation on Perdue's cross-examination did not violate his Confrontation Clause rights and was not an abuse of discretion.
Nor was the district court's limitation on cross-examination an abuse of discretion under the rule of completeness. Perdue argues that once excerpts of his statement came into court, the entirety of the statement needed to be introduced to understand the statements in the proper context. He argues that "[t]he jury was left with the impression that Perdue had partially confessed, when in fact the tenor of the interview was the opposite." Perdue Appellant Br. at 21. "The 'rule of completeness' allows a party to correct a misleading impression created by the introduction of part of a writing or conversation by introducing additional parts of it necessary to put the admitted portions in proper context." United States v. Holden, 557 F.3d 698, 705 (6th Cir.2009). This common-law principle "was codified for written statements in [Federal Rule of Evidence] 106, and ․ extended to oral statements through interpretation of [Federal Rule of Evidence] 611(a)." Id. (footnotes omitted). However, the rule of completeness "is not designed to make something admissible that should be excluded." United States v. Costner, 684 F.2d 370, 373 (6th Cir.1982). "Right or wrong, this court has acknowledged that under Costner, '[e]xculpatory hearsay may not come in solely on the basis of completeness.' " United States v. Adams, 722 F.3d 788, 826 (6th Cir.2013) (quoting United States v.. Shaver, 89 F. App'x 529, 533 (6th Cir.2004)). Because the exculpatory statements were inadmissible hearsay, the district court did not abuse its discretion under the rule of completeness by limiting Perdue's cross-examination of Plantz.
Ford argues that introduction into evidence of the statements of his non-testifying co-defendant, Perdue, violated his Confrontation Clause rights under United States v. Bruton, 391 U.S. 123 (1968). In Bruton, the Supreme Court held that the Confrontation Clause is violated by the introduction of an incriminating out-of-court statement by a non-testifying co-defendant, even if the court gives a limiting instruction that the jury may consider the statement only against the co-defendant. Id. at 136–37.
Generally, we review de novo Confrontation Clause challenges. United States v. Vasilakos, 508 F.3d 401, 406 (6th Cir.2007). However, when a defendant fails to object on Confrontation Clause grounds at trial, we review the claim for plain error. United States v. Martinez, 588 F.3d 301, 313 (6th Cir.2009). "Plain error review applies even if the forfeited assignment of error is a constitutional error." United States v. Cromer, 389 F.3d 662, 672 (6th Cir.2004) (citing United States v. Jones, 108 F.3d 668, 676 (6th Cir.1997)). Before trial, Ford moved to sever his case on the ground that the government's plan to introduce co-defendant Perdue's statement violated Bruton. R. 166 (Ford Mot. to Sever at 1–2) (Page ID # 471). The government identified one portion of the Perdue statement that it believed would implicate Ford and proposed to redact Ford's name when the statement was introduced at trial. R. 171 (Gov't Response at 6–8) (Page ID # 541–53). The district court agreed that this plan resolved the Bruton problem and denied the motion to sever. R. 177 (Order on Mot. to Sever at 1) (Page ID # 618). Ford did not make any Bruton objections when Plantz testified at trial about Perdue's statements. Because Ford's motion to sever did not identify any specific portions of Perdue's statement that violated Bruton and because he did not object at trial to the statements, the government argues that Ford forfeited the Bruton claim. Ford's argument is a bit unclear, but he seems to argue that his motion to sever preserved his claim and that the trial judge indicated that he had addressed the Bruton issue before Plantz testified, so there was no need for Ford to object to the testimony. Ford Appellant Br. at 37–38; Ford Reply Br. at 2.
The general requirement that a defendant must contemporaneously object to the introduction of evidence or forfeit his or her claim "serves to induce the timely raising of claims and objections, which gives the district court the opportunity to consider and resolve them." Puckett v. United States, 556 U.S. 129, 134 (2009). A defendant who does not contemporaneously object may not raise the claim of trial error on appellate review unless it is "[a] plain error that affects substantial rights ․" Fed.R.Crim.P. 52(b). In this circuit, we have recognized some exceptions to the requirement of a contemporaneous objection. A defendant need not make a contemporaneous objection if he or she raised an evidentiary challenge in a motion in limine and the trial court ruled against the defendant in an "an explicit and definitive ruling" that is not "conditioned upon any other circumstances or evidence." United States v. Brawner, 173 F.3d 966, 970 (6th Cir.1999). "However, if the court's ruling is in any way qualified or conditional, the burden is on counsel to raise objection to preserve error." Id. This rule recognizes that the efficiency goals of requiring contemporaneous objections are not furthered if the court has already definitively ruled on the evidence at issue.
Our circuit has not decided whether a motion to sever preserves a Bruton objection. The circuits to consider this question have split on the answer. See United States v. Nash, 482 F.3d 1209, 1218 n. 7 (10th Cir.2007) (holding that a pretrial motion to sever preserved the Bruton claim even though defendant did not object to the introduction of the evidence at trial); United States v. Vega Molina, 407 F.3d 511, 519–20 (1st Cir.2005) (holding that a motion to sever preserved the Bruton objection when the district court categorically denied the motion to sever because it concluded that the statement was not incriminating); but see United States v.. Turner, 474 F.3d 1265, 1276 (11 th Cir.2007) (reviewing Bruton claim for plain error when defense counsel did not contemporaneously object to testimony but did move for severance the next day); United States v. Jobe, 101 F.3d 1046, 1068 (5th Cir.1996) (reviewing Bruton claim for plain error where district court denied motion to sever but defendant did not contemporaneously object to the testimony). Under the circumstances of this case, we need not wade into this circuit split.
We hold that the introduction of the statement that Ford challenges on appeal does not violate the Bruton rule and so does not violate Ford's Confrontation Clause rights. Ford concedes that Perdue's statement, as it was introduced at trial, did not name Ford. Ford Appellant Br. at 37. Ford argues that the Bruton problem arose from the fact that Perdue's statement corroborated evidence previously introduced that did implicate Ford. Id. at 40. However, "Bruton does not bar the use of a redacted codefendant's confession 'even if the codefendant's confession becomes incriminating when linked with other evidence adduced at trial.' " United States v. Cobleigh, 75 F.3d 242, 248 (6th Cir .1996) (quoting United States v. DiCarlantonio, 870 F.2d 1058, 1062 (6th Cir.1989)). Any conclusion by the jury that Perdue's statement implicated Ford might be made only by linking the statement to other evidence. Introduction of the statement did not, therefore, violate the Bruton rule. The district court did not commit error by allowing the introduction of the statement.
Ford argues that the district court abused its discretion by failing to conduct individual Remmer hearings after one juror expressed concern about her safety. We review jury-misconduct claims for an abuse of discretion. United States v. Wheaton, 517 F.3d 350, 361 (6th Cir.2008).
After the jury left the courtroom on January 25, the district court informed counsel that it had received a note from a juror indicating safety concerns.9 R. 205 (Trial Tr. at 227) (Page ID # 2066). Counsel for Ford stated that if safety issues had been a topic of discussion amongst the jurors and that "if there's been taint that's gone through the jury, my gut reaction is that we should talk to her privately." Id. at 228 (Page ID # 2067). The next day, the district court judge spoke to the juror in the courtroom in the defendant's presence; the juror stated that the safety concerns were shared by other jurors but that her concerns would not affect her ability to make a decision. Id. at 13–14 (Page ID # 2085–86). The district judge brought the entire jury in but did not speak individually to any other jurors; instead, he gave a general instruction to send him a note if anybody did not feel they could decide the case based on the law and the evidence. Id. at 20–21. No jurors indicated safety or other concerns.
"The sixth amendment right to trial by jury is designed to ensure criminal defendants a fair trial by a 'panel of impartial, indifferent' jurors.' " United States v. Shackleford, 777 F.2d 1141, 1145 (6th Cir.1985) (quoting Irvin v. Dowd, 366 U.S. 717, 722 (1961)). In Remmer v. United States, the Supreme Court held that when a trial court learns of possible juror bias, the court must "determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial, in a hearing with all interested parties permitted to participate." 347 U.S. 227, 230 (1954). We require a Remmer hearing "whenever the defense raises a 'colorable claim of extraneous influence.' " United States v. Owens, 426 F.3d 800, 805 (6th Cir.2005) (citation omitted). "When a defendant stares at a juror during the course of his trial, however, he has introduced no outside contact with, nor special information about, a party or witness." Id. The juror in this case, as in Owens, did not state that she had outside information or an out-of-court experience that caused her to fear for her safety; her fear was a purely personal reaction to seeing the defendant in the courtroom. This is not an "extraneous influence" that triggers the requirement of a Remmer hearing for the juror who expressed concern or for the other jurors. The district court did not, therefore, abuse its discretion by failing to conduct individual Remmer hearings for all of the jurors.
And second, that the defendant's act of robbery obstructed, delayed, or affected commerce ․ The parties have stipulated that the robberies charged in the Indictment affected commerce, and so you must accept that fact as established. It is not necessary for the government to prove that the defendant actually intended to obstruct, delay, or affect commerce.
If you are convinced that the government has proved all of these elements, say so by returning a guilty verdict on this charge. And if you have a reasonable doubt about any one of these elements, then you must find the defendants not guilty of this charge.
R. 208 (Trial Tr. at 20–21) (Page ID # 2509–10) (emphasis added). Ford argues that the district court erred by denying his right to a jury trial without properly inquiring whether he waived that right knowingly, intelligently, and voluntarily.
Because Ford did not raise this argument in the district court, we review for plain error. United States v. Monghan, 409 F. App'x 872, 875 (6th Cir.2011). "[T]he burden of establishing entitlement to relief for plain error is on the defendant claiming it." United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004). Plain error requires (1) an "error or defect," (2) that is "clear or obvious," and (3) that "affect[s] the appellant's substantial rights, which in the ordinary case means he must demonstrate that it 'affected the outcome of the district court proceedings.' " Puckett, 556 U.S. at 135. If those first three prongs are satisfied, we should correct a plain error "if the error 'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' " United States v. Olano, 507 U.S. 725, 736 (1993) (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)). Even if we assume error, Ford cannot show that the error harmed his substantial rights in light of the stipulation.
Ford and Perdue argue that the district court violated the Double Jeopardy Clause by improperly predicating multiple 18 U.S.C. § 924(c) counts on the single conspiracy count. Typically, the application of 18 U.S.C. § 924(c) is a question of law that we review de novo. United States v. Langan, 263 F.3d 613, 626–27 (6th Cir.2001). However, because neither Ford nor Perdue raised this objection at sentencing, we review for plain error. United States v. Yancy, 725 F.3d 596, 600 (6th Cir.2013).
On or about February 11, 2009, in Ingham County, in the Southern Division of the Western District of Michigan, WILNELL HENRY, a/k/a "Prince Nev," a/k/a "P–Nev," and JORDON FORD, a/k/a "JD," did possess, and brandish a firearm, and aid and abet in the possession and brandishing of a firearm, in furtherance of the crimes of violence alleged in Counts 1 and 2 of this Superseding Indictment, incorporated here by reference.
R. 77 (Superseding Indictment at 4) (Page ID # 132). Count 1 charged Ford with conspiracy; Count 2 charged Ford with the February 11, 2009, robbery of Check Into Cash. Id. at 3 (Page ID # 131). The indictment thus predicated the § 924(c) charge on both the conspiracy charge and a single robbery charge. The other § 924(c) counts followed this format. The verdict form and special interrogatories clearly indicate that the jury found that each § 924(c) conviction was predicated on guilt of both the conspiracy count and a robbery count. R. 190 (Jury Verdict) (Page ID # 642).
"The Double Jeopardy Clause of the Fifth Amendment prohibits multiple punishments for the same criminal act or transaction." United States v. Graham, 275 F.3d 490, 519 (6th Cir.2001). Because of this prohibition, "a court may not impose more than one sentence upon a defendant for violations of section 924(c) which relate to but one predicate offense." United States v. Sims, 975 F.2d 1225, 1233 (6th Cir.1992). However, we do "uph[o]ld multiple convictions and sentences under 18 U.S.C. § 924(c)(1) so long as such convictions are based on separate predicate acts." Graham, 275 F.3d at 519–20. Although every § 924(c) count was based on the same conspiracy count, each was also tied to a unique robbery count. Therefore, the § 924(c) sentences did not "relate to but one predicate offense," Sims, 975 F.2d at 1233, and so did not violate the Double Jeopardy Clause. It was not error for the district court to sentence Ford and Perdue based on multiple § 924(c) convictions.
Perdue argues that the district court did not recognize its authority to disagree with the Sentencing Guidelines as a basis for a downward variance. He concedes that his claim is reviewed for plain error because he did not object to this procedural error during sentencing and the district court conducted an adequate Bostic inquiry.11 Perdue Appellant Br. at 26.
The Presentence Investigation ("PSR") calculated Perdue's period of incarceration at a range of 1,494 to 1,546 months, largely due to lengthy mandatory minimum sentences for the multiple § 924(c) counts. Presentence Investigation Report at 39. Before the sentencing hearing, Perdue filed a motion for a downward departure or variance. R. 215 (Perdue Sent. Mot. at 1) (Page ID # 2723); R. 216 (Perdue Sent. Memo.) (Page ID # 2724). He argued that the imposition of what amounted to a life sentence violated the Eighth Amendment and 18 U.S.C. § 3553. R. 216 (Perdue Sent. Memo.) (Page ID # 2724). The government opposed the request for a downward departure or variance. R. 228 (Gov't Opp. to Perdue Sent. Memo.) (Page ID # 2789). Perdue was sentenced to 1,464 months of incarceration. R. 256 (Ford Sent. Tr. at 24) (Page ID # 2943).
On appeal to this court, Perdue argues that the district court committed procedural error by failing to recognize its authority to vary from the Sentencing Guidelines based on the effect of the § 924(c) sentences and Eighth Amendment concerns. Perdue Appellant Br. at 26–29. "A sentence is procedurally inadequate if the district court fails to calculate properly the Guidelines range, treats the Guidelines as mandatory, fails to consider the section 3553(a) factors, selects the sentence based upon clearly erroneous facts, or fails to adequately explain the chosen sentence." United States v. Harmon, 607 F.3d 233, 238 (6th Cir.2010) (citing Gall v. United States, 552 U.S. 38, 51 (2007)).
As evidence that the court did not recognize its discretion to vary from the Guidelines, Perdue points to a statement of the district court during the sentencing hearing: "And even though the same authority I've just talked about I think precludes me from any kind of a departure or variance on the robbery offenses because I think he's already getting enough time on the weapons offenses, I don't think I can do that." Perdue Appellant Br. at 28–29 (quoting R. 206 (Perdue Sentencing Tr. at 21–22) (Page ID # 2940–41)). This comment came after the district court discussed Sixth Circuit cases analyzing whether a district court may vary or depart below the statutory mandatory minimums in order to honor the mandate under § 3553(a) that the sentence be "sufficient but not greater than necessary, to comply with" the goals of sentencing. R. 256 (Perdue Sentencing Tr. at 15) (Page ID # 2934); 18 U.S.C. § 3553(a). The district court concluded that under Sixth Circuit precedent, "the very general statute § 3553(a) cannot be understood to authorize courts to sentence below minimums specifically prescribed by Congress." R. 256 (Perdue Sent. Tr. at 15) (Page ID # 2934).
The district court's recognition of its lack of authority to sentence below the mandatory minimum for the § 924(c) counts through consideration of the § 3553(a) factors was correct under the law of this circuit. In United States v. Franklin, we held that " § 3553(a) factors do not apply to congressionally mandated sentences." 499 F.3d 578, 585 (6th Cir.2007). Even when a district court considers the mandatory minimum sentences to be " 'draconian' and 'inappropriate,' " nonetheless "[w]hen a court and a mandatory minimum are in conflict, the minimum wins." United States v. Cecil, 615 F.3d 678, 695 (6th Cir.2010). Although a sentence may be procedurally unreasonable if it "fails to consider the section 3553(a) factors," Harmon, 607 F.3d at 238, a sentence is not rendered procedurally unreasonable by the district court correctly acknowledging when it lacks discretion. Accordingly, the district court did not err and Perdue's sentence was not procedurally unreasonable.
Nathan argues that his sentence is procedurally unreasonable because the district court misapplied § 1B1.2(d) of the 2011 U.S. Sentencing Guidelines Manual ("U.S.S.G.") by considering robberies for which he was indicted but did not plead guilty as object offenses of the conspiracy, leading to a five-level sentencing enhancement. He argues that his sentence was substantively unreasonable because the enhancement based on the robberies violated his Sixth Amendment right to a jury trial. We review his claim for an abuse of discretion. United States v. Christman, 607 F.3d 1110, 1117 (6th Cir.2010). "An error of law in the application or interpretation of the Guidelines constitutes an abuse of discretion." United States v. Levy, 250 F.3d 1015, 1017 (6th Cir.2001).
Nathan argues that his sentence is procedurally unreasonable because the district court erroneously counted robberies as object offenses of the conspiracy to which he pleaded, even though neither the indictment nor his plea agreement specified which robberies were objects of the conspiracy.
Nathan pleaded guilty to Count 1 of the superseding indictment, conspiracy to commit robbery affecting interstate commerce. R. 129 (Nathan Plea at 1) (Page ID # 251). The indictment did not provide any specific information about the robberies that were the objects of the conspiracy; it merely stated that the conspiracy occurred "[f]rom in or about February 2009, to on or about October 9, 2009, in Ingham County, in the Southern Division of the Western District of Michigan ․" and that "[t]he object of the conspiracy was to obtain money by committing robberies of commercial businesses in the greater Lansing, Michigan, area." R. 77 (Superseding Indictment at 1–2) (Page ID # 129–30).
In determining the adjustments to Nathan's sentence under § 3D1.4, the PSR assigned units for thirteen robberies that it concluded were objects of the conspiracy and came to a combined adjusted offense level of thirty-six. PSR at 31–32. Because robbery offenses are not subject to the grouping rules, see §§ 3D1.2(d), 2B3.1, the PSR determined Nathan's offense level as if he had been convicted of conspiracy to commit each robbery pursuant to § 1B1.2(d). Although many of the robberies counted as object offenses were substantive robbery counts in the superseding indictment, six of the robberies were not charged in the superseding indictment.12 At sentencing, Nathan objected to this increase as a misapplication of U.S.S.G. § 1B1.2(d). R. 273 (Nathan Sent. Tr. at 6–7) (Page ID # 3058–59). The district court rejected the claim under §§ 1B1.2(d) and 3D1.4, noting that all thirteen robberies were within the time frame, location, and type of action charged in the conspiracy and finding beyond a reasonable doubt that each of the thirteen robberies was within the scope of the conspiracy. Id. at 18 (Page ID # 3070).
Section 1B1.2(d) provides that "[a] conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense that the defendant conspired to commit." Application Note 313 to this Guideline explains that "where a conviction on a single count of conspiracy establishes that the defendant conspired to commit three robberies, the guidelines are to be applied as if the defendant had been convicted on one count of conspiracy to commit the first robbery, one count of conspiracy to commit the second robbery, and one count of conspiracy to commit the third robbery." U.S.S.G. § 1B1.2(d), cmt. n. 3 (2011).
Particular care must be taken in applying subsection (d) because there are cases in which the verdict or plea does not establish which offense(s) was the object of the conspiracy. In such cases, subsection (d) should only be applied with respect to an object offense alleged in the conspiracy count if the court, were it sitting as a trier of fact, would convict the defendant of conspiring to commit that object offense. Note, however, if the object offenses specified in the conspiracy count would be grouped together under § 3D1.2(d) (e.g., a conspiracy to steal three government checks) it is not necessary to engage in the foregoing analysis, because § 1B1.3(a)(2) governs consideration of the defendant's conduct.
U.S.S.G. § 1B1.2(d), cmt. n. 4 (emphasis added). Nathan argues that the thirteen robberies were not "alleged in the conspiracy count" by the indictment or the plea under Application Note 4, and therefore should not have been counted as object offenses.
We have not decided whether robberies may be counted as object offenses of a conspiracy when the conspiracy count under which defendant was convicted does not enumerate or list the robberies.14 The Government urges this court to follow the Second Circuit's decision in United States v. Robles, which held that multiple robbery offenses may be treated as objects of a conspiracy under § 1B1.2(d) even where the offenses were not specifically named in the conspiracy count. United States v. Robles, 562 F.3d 451, 455 (2d Cir.2009). We agree with our sister circuit's interpretation of Application Note 4. The Second Circuit concluded that the emphasis of Application Note 4 was not "on the specificity of the conspiracy charge but on the standard of proof that must be satisfied" for the court to count an object offense towards the defendant's offense level. Id. Further, because Application Note 4 specifically addresses situations where "the verdict ․ does not establish which offense(s) was the object of the conspiracy," if the Note "required that the objects of a conspiracy be specifically named in the conspiracy count of an indictment, it would be difficult to imagine the reason for this comment's existence." Id. (internal citation omitted). Accordingly, the district court did not err in counting the thirteen robbery offenses as object offenses of the conspiracy.
Nathan argues that his sentence was substantively unreasonable because the district court made factual findings that Nathan committed the robberies; Nathan argues that the sentencing enhancement based on the findings of the district court violated his Sixth Amendment right to a jury trial, and therefore rendered his sentence substantively unreasonable. This claim is without merit. Application Note 4 to § 1B1.2(d) provides that when "the verdict or plea does not establish which offense(s) was the object of the conspiracy," an offense may be counted "with respect to an object offense alleged in the conspiracy count if the court, were it sitting as a trier of fact, would convict the defendant of conspiring to commit that object offense." After United States v.. Booker, 543 U.S. 220 (2005), "a District Court may rely on extra-verdict facts or on those other than which the defendant has specifically admitted when it calculates his sentence." United States v. Cook, 453 F.3d 775, 777 (6th Cir.2006). "[U]nder the advisory Guidelines, [a] defendant may be sentenced up to the statutory maximum if such a sentence would comply with 18 U.S.C. § 3553(a)." United States v. Barton, 455 F.3d 649, 655–56 (6th Cir.2006). That Nathan's sentencing enhancement was based on findings by the district court, not the jury, did not violate his Sixth Amendment right to trial by jury, and accordingly, Nathan's sentence is not substantively unreasonable.
Henry argues that his sentence was procedurally unreasonable because the district court failed to articulate the applicable Sentencing Guidelines range after granting a § 5K1.1 departure and then failed to articulate the extent of the upward variance.15 Henry concedes that this court should review his sentence for plain error because he did not object to the sentence on procedural unreasonableness grounds after being given an adequate opportunity to do so. Henry Appellant Br. at 9–10.
The district court began Henry's sentencing hearing by stating the applicable Guidelines range; with an offense level of 29 and criminal history Category VI, the Guidelines range was 151 to 188 months of imprisonment. R. 291 (Henry Sent. Tr. at 10) (Page ID # 3181). The district court then discussed whether there were reasons for a variance based on the 18 U.S.C. § 3553(a) factors or a departure under § 5K1.1 based on Henry's substantial assistance to authorities. Id. at 19 (Page ID # 3190). The district court concluded that Henry had provided substantial assistance that warranted an adjustment, but proceeded to discuss his concerns that Henry was the leader of the robbery conspiracy, was the "least believable" of the co-conspirators who provided testimony at trial, had lied to law enforcement, and had a criminal history beginning at age twelve. Id. at 22–27 (Page ID # 3193–98). The district court mentioned coconspirator Nathan's sentence of 168 months and then sentenced Henry to 150 months of imprisonment. Id. at 29–30 (Page ID # 3200–01).
Henry argues that the district court was required to state the new Guidelines range that applied after granting the § 5K1.1 downward departure, and then to state specifically the amount of the upward variance from that new Guidelines range. However, we have held that "[t]here is no requirement that, after concluding that a departure is warranted, the court must specify a new, adjusted sentencing range." United States v. Herrera–Zuniga, 571 F.3d 568, 588 (6th Cir.2009). A sentence may be procedurally unreasonable when the district court fails to identify "any specific, numeric Guidelines range at any point during the hearing." United States v. Novales, 589 F.3d 310, 314 (6th Cir .2009) (emphasis added); see also Gall, 552 U.S. at 49 (stating that "a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range․ [T]he Guidelines should be the starting point and the initial benchmark."). Here, however, the district court stated the Guidelines range that applied prior to making any departures or variances. Accordingly, Henry has not demonstrated plain error, and we affirm his sentence.
Ford and Perdue filed pro se motions "to dismiss due to lack of jurisdiction." Ford Memo. at 1; Perdue Memo. at 1. They argue that "[t]he United States lacked subject-matter jurisdiction" "due to the government's failure to prove interference with interstate commerce." Id. Prior to trial, a stipulation was entered that stated that the robberies satisfied the element of interstate commerce. R. 188 (Stipulation at 1) (Page ID # 639). Ford's and Perdue's attorneys signed the stipulation. Id. However, in their motions to dismiss, Ford and Perdue assert for the first time that they were unaware of and did not agree to the stipulation and that although the stipulation was read at trial, they were not aware that the "stipulation was waiving the defendant's jurisdiction." Ford Memo. at 4; Perdue Memo. at 6. Like a claim of ineffective assistance of counsel, this argument depends on facts outside of the record and so is more properly presented in a 28 U.S.C. § 2255 petition. Because this argument was not raised below and the appellate record does not provide an adequate basis to assess this claim, we decline to decide this issue.
For the foregoing reasons, we AFFIRM the convictions and sentences of Ford, Perdue, Nathan, and Henry.
1. "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 fined under this title or imprisoned not more than twenty years, or both." 18 U.S.C. § 1951(a).
2. "(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal." 18 U.S.C. § 2.
3. "Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime—(i) be sentenced to a term of imprisonment of not less than 5 years; (ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and (iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years." 18 U.S.C. § 924(c)(1)(A). "In the case of a second or subsequent conviction under this subsection, the person shall—(i) be sentenced to a term of imprisonment of not less than 25 years; and (ii) if the firearm involved is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, be sentenced to imprisonment for life." 18 U.S.C. § 924(c)(1)(C).
4. Both were convicted of Count 1, conspiracy to commit robbery affecting commerce. R. 190 (Jury Verdict at 1) (Page ID # 642). Ford was convicted of the following robbery counts: Count 2, Check Into Cash; Count 4, Fox Island Party Store; Count 9, Mario's Market; Count 11, West Saginaw Party Store; and Count 15, Famous Taco Restaurant. Id. at 1–7 (Page ID # 642–48). He was also convicted of three counts of possessing and brandishing a firearm in furtherance of a crime of violence and two counts of possessing and discharging a firearm in furtherance of a crime of violence. Id. at 2–7. Perdue was convicted of the following robbery counts: Count 6, Check Into Cash; Count 7, Hungry Howie's Restaurant; Count 9, Mario's Market; Count 11, West Saginaw Party Store; Count 17, Citgo Gas Station; and Count 19, Mount Hope Party Store. Id. at 3–8. He was also convicted of two counts of possessing and brandishing a firearm in furtherance of a crime of violence and three counts of possessing and discharging a firearm in furtherance of a crime of violence. Id. at 3–9.
6. Because Ford and Perdue objected to the introduction of evidence of Vice Lords gang membership through pre-trial motions in limine, and the district court's ruling on the motion was not "qualified or conditional," they did not need to renew the objection at trial to preserve the issue for appeal. United States v. Brawner, 173 F.3d 966, 970 (6th Cir.1999).
7. This argument is based on exchanges at trial with Wilnell Henry and Christopher Wyatt Kirby. The following exchange occurred between Scott Graham, counsel for Ford, and Henry:Graham: Now, I just want to make sure I'm clear about a point about Vice Lords and about Vice Lords as they relate to Fallen Angel and Vice Lords as they relate to the armed robberies that you know to be part of this case. Being a Vice Lord had nothing to do with those robberies did it?Henry: No, it did not.Graham: They aren't related at all are they?Henry: No.R. 206 (Trial Tr. at 121–22) (Page ID # 2192–93).A similar exchange occurred between Donald W. Garthe, counsel for Perdue, and Kirby: Garthe: Now, whatever was happening, whatever was happening that you've testified to about armed robberies, that stuff had nothing to do with Vice Lord activity, did it?Kirby: No, it didn't.Garthe: They were completely separate, weren't they?A: Yes, they were.R. 207 (Trial Tr. at 139) (Page ID # 2410).
8. Perdue did not object. Typically when a party does not object to evidence at trial, we review the claim for plain error only. United States v. Baker, 458 F.3d 513, 517 (6th Cir.2006). However, because it is " 'redundant and inefficient to require each defendant in a joint trial to stand up individually and make every objection to preserve each error for appeal,' " id. at 518 (quoting United States v. Pardo, 636 F.2d 535, 541 (D.C.Cir.1980)), Ford's objection preserved the issue for Perdue, and so Perdue's claim is not subject to plain-error review.
9. The note stated:I have some concerns (fears) about my safety as a juror. If for some reason there is an unfavorable outcome in the eyes of the defendants, what type of access would they have to our personal information, where we live etc. We did all introduce ourself [sic] and tell the court what we did. I stated I was a teacher and the mother of 4. I didn't think about it at the time but when defendants are staring you down as if they are trying to memorize your face it gets a little scary. Thank you for your kind advice on this manner [sic].R. 190–1 (Juror Notes at 2) (Page ID # 652).
10. "The United States of America ․ and Scott Graham, attorney for Jordan Ford, hereby stipulate and agree as follows: That the robberies alleged in the Superseding Indictment in this matter did unlawfully obstruct, delay and affect commerce as that term is defined in Title 18, United States Code, Section 1951, and the movement of articles and commodities in such commerce. The parties agree by this stipulation that this essential element (affect [sic] on interstate commerce) has been satisfied by the United States." R. 188 (Stipulation at 1) (Page ID # 639).
11. In United States v. Bostic, we "announce[d] a new procedural rule, requiring district courts, after pronouncing the defendant's sentence but before adjourning the sentencing hearing, to ask the parties whether they have any objections to the sentence just pronounced that have not previously been raised." 371 F.3d 865, 872 (6th Cir.2004). If the defendant does not raise an objection when given an adequate opportunity to do so, we review the objection raised on appeal for plain error. United States v. Tate, 516 F.3d 459, 464 (6th Cir.2008).
12. Nathan was charged in the superseding indictment with seven of the robberies counted as object offenses: Hungry Howie's, Mario's Market, West Saginaw Party Store, Big Ten Party Store, Famous Taco Restaurant, Citgo Gas Station, and Mount Hope Party Store. R. 77 (Superseding Indictment at 8–20) (Page ID # 136–148); PSR at 24–31. These robbery charges were dismissed pursuant to Nathan's plea agreement to the single conspiracy charge. R. 129 (Nathan Plea Agreement at 3) (Page ID # 253). Six of the robberies counted as object offenses were not charged in the superseding indictment: Shell Gas Station, Hot House, Admiral Gas Station on two occasions, Quality Dairy, and Flower World. PSR at 24–31.
13. We may look to the Application Notes for guidance. "Commentary which functions to 'interpret [a] guideline or explain how it is to be applied,' controls, and if failure to follow, or a misreading of, such commentary results in a sentence 'select[ed] ․ from the wrong guideline range, that sentence would constitute 'an incorrect application of the sentencing guidelines' under 18 U.S.C. § 3742(f)(1)." Stinson v. United States, 508 U .S. 36, 42–43 (1993) (internal citations omitted).
14. At the sentencing hearing, the district court relied on United States v. Bates, 552 F.3d 472, 477 (6th Cir.2009), noting that "even though Bates dealt with a slightly different issue ․ the message of the case to me from the Sixth Circuit is the Sixth Circuit doesn't have any problem with the method." R. 273 (Nathan Sent. Tr. at 15–16) (Page ID # 3067–68). We disagree with the district court's reading of this "message" in Bates. The Bates defendant did not challenge the counting of robbery offenses as objects of the conspiracy, and we did not discuss or decide the propriety of that procedure when the conspiracy count does not list or enumerate the object offenses.
15. Henry's plea agreement waived most appeal rights. However, the government can lose its right to assert waiver "by failing to raise it in a timely fashion." Hunter v. United States, 160 F.3d 1109, 1113 (6th Cir.1998). Because the government does not assert that Henry is precluded from bringing this appeal, we need not determine if this issue is within the scope of Henry's waiver of appellate rights.


ROCHESTER, N.H. – Don't expect Gov.Rick Perry to pay back the $80,000 in taxpayer money earmarked for his legal team.
The governor, charged with coercion and abuse of power, said this week he will tap his campaign account to pay for his defense from this point forward – a reversal of his initial plans – saying that he did not want to saddle taxpayers with the cost of a wrongful prosecution. But it was unclear whether his campaign would repay the $80,000 in state funds that Texas Comptroller Susan Combs had already authorized be paid to the firm of one of his criminal defense attorneys, David Botsford.
Felix Browne, a Perry spokesman, confirmed that Perry would not use his campaign funds to pay those initial bills. Asked whether the $80,000 included legal services for state employees other than Perry, Browne said he would look into it.
Perry spoke to reporters in front of a barn at the fairgrounds during his two-day swing through New Hampshire. He is testing opinion in this crucial primary state as he considers whether to seek the Republican nomination for president. He plans to fly to South Carolina next week, and he told New Hampshire Republicans he will return in October.
Perry was booked this week on felony charges related to his threat to veto $7.5 million in state funds for the public integrity unit of the Travis County district attorney's office. Perry wanted Travis County District Attorney Rosemary Lehmberg to resign following her drunken driving arrest and conviction. She declined and he followed through on the veto, keeping $7.5 million from the state public corruption unit that is a part of the Lehmberg's office.
Perry last week called the prosecution a politically motivated farce, and said "those responsible will be held accountable." Julie Kocurek, a Democratic district state judge, later told the Austin American-Statesman that the statement could be considered a veiled threat to the grand jurors who indicted Perry.


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I, Robot Retailer
10 expert comments
Operations Retail Tech Zoom Systems
by George Anderson
It's a brave new world. According to a San Francisco Business Times article, Safeway and Macy's West are testing futuristic vending machines that sell high-priced gadgets delivered to consumers via robotic arms. The company's founder says the 28-square-foot systems generate revenues between $1,500 and $15,000 per square-foot.
The devices, developed by Zoom Systems of San Francisco, let customers order goods using a touch screen and credit card. A robotic arm inside the machine then delivers the product to consumers. Zoom monitors each transaction as it takes place and keeps tabs on the inventory, as well.
"We're very encouraged so far by consumer adoption of self-serve, automated retail … and our ability to be a new channel for these popular brands and products," said Gower Smith, founder of Zoom Systems. "Automated retail makes sense. We made a significant investment in technology and the last year has been enlightening. We're getting real data from the marketplace."
Mr. Smith's company currently has 100 of its automated Zoom Shops in operation and sales have grown in double-digits for each machine, every month in operation. The company is looking to have 10,000 shops operating within five years.
Moderator's Comment: What do you see as the biggest benefit to retailers using a system such as the Zoom Shop? How do you see vending and robotics helping
to shape (or not) retailing environments in the future? –
George Anderson – Moderator
High-tech vending Zooms into Macy's
and Safeway – San Francisco Business Times
Please practice The RetailWire Golden Rule when submitting your comments.
10 Comments on "I, Robot Retailer"
Len Lewis
Vending machines have been used extensively in Japan for years, dispensing everything from books and cameras to $150 per pound Kobe beef. It's also been used for some food and general merchandise items by chains in Europe, such as Auchan.
The proposed sales per square foot is very impressive and the new generation of vending machines is far superior to what was out there in the past. But people still like to play touchy-feely with the merchandise–even if they know what they want. And the American mindset for vending is still focused on cigarettes, candy and freeze-burned ice cream pops.
I think the technology should be explored but I would reserve judgement on its success–particularly in venues like Safeway.
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James Tenser
The projected sales per square foot for the Zoom devices seems impressive – until you compare apples to apples. Store aisles generate $0 in sales per square foot, while product displays and service counters may generate several times the store average. An automated display set within a larger retail space would seem highly productive when you consider only its footprint, but the real test is how much incremental revenue and profit it attracts to the store, versus whatever it replaces.
Automated vending of small electronics and other small, high-ticket goods may be a boon in convenience and supermarket locations, where they may bring new types of revenue. In a department store environment that already offers such items, I'd be concerned that they add little to the existing rate of sales while sending a negative message to shoppers about the store's overall service level. How many iPods is a store's image worth?
Warren Thayer
I wish they hadn't made that silly and self-serving boast about bringing in $1,500 to $15,000 per square foot, vs. $200-$500 for average retail. Come on — iPods and high-tech electronics vs. potato chips and hosiery. I wonder which will do better on a square-foot basis? Duh. Just throwing that in turned my BS detector on and shot their credibility with me. Maybe it'll work, maybe it won't. Venue and SKU selection will make it or break it, and it'll be an interesting experiment to watch. But with "used car salesman" tactics in their marketing mix, if it were my money, I'd tread carefully.
Edward Herrera
It will come down to time and efficiency of the buying experience. Most become a little more methodical and robotic every day. For me, shopping becomes more of a check off my to do list. The retailer would love to see more products being paid for before it is touched. I think it is inevitable and we will see more resources budgeted against it. We worry too much about robotics when WE are becoming the robots.
Kai Clarke
Yes, they should test these, but reserve judgement until the test is completed. This is a an old concept with a new twist. Vending machines aren't anything special, however, offering expensive products from them is different. The real test is how much ROI the machine can deliver compared to other items in the store. The measure of ROI vs. opportunity cost is very important, especially in a low-margin operation like a grocery store. If there isn't a substantial amount of ROI, Safeway and Macy's should focus on their key products in their store offerings and continue to sell these products in a way which makes financial sense. Perhaps the real question here is why Safeway is offering such expensive products that couldn't be sold behind their existing customer service counters.
Bernice Hurst
High priced gadgets from Safeway? Who goes to the supermarket expecting to spend a lot of money on such items and why would they buy them there rather than a specialist place either off or online? As for clever clever robotic vending machines, all that says to me is break in, help yourself to my inventory. Please, someone, explain why this is a good idea or how a retailer could benefit?
Mark Lilien
It's not clear whether these machines would be a reasonable investment to staff an entire store instead of limited assortments. I'm sure it wouldn't be great for their image, but if an entire liquor store could be run this way, a remote "manager" could run a dozen simultaneously using internet based closed circuit video. If that concept was expanded to other specialty store categories, customers could see substantial parts of a mall or strip center run by robot machines. There are numerous specialty stores with very few daily transactions, and other stores whose categories have higher than average security issues. Customer questions could be answered by the remote "video manager". Any why not use this concept to replace live pharmacists? The rare counseling needed could be done by interactive video.
Jeff Weitzman
Not exactly on topic, but the Apple Express Stores and the Apple Stores are trying interesting methods for optimizing floor space. The Express stores have checkout and inventory stations built into the wall. When you want a computer or other item, they can have it brought out via an opening in the wall, a keyboard and credit card station flips out of the wall, and they complete the transaction at this 'kiosk.' It leaves the entire floor area open for product display and inventory can be stored more efficiently in back. At the regular stores, they have started using handheld wireless checkout devices, allowing them to keep the number of cash register stations low without causing huge lines, again maximizing the space available for product selling.
These techniques won't work for all stores, obviously. Registers are good places for impulse buys if that is the type of inventory carried. But the point is that retailers who understand their business and their customers can try a lot of innovative techniques to maximize their revenue.
Ben Ball
There are plenty of current precedents for vend sales of higher ticket items, many outside the U.S. as noted above. But there are at least two reasons this should be a good idea for Safeway.
First, these units are generally located in a way that turns dead space into selling space. In most outlets, that means beyond the cash register — which is also the location with 100% foot traffic.
Second, consumers are proving to be perfectly comfortable with interacting with automated vendors. One could argue that the experience is preferred to human exchange by some. Not hard to fathom when you think of no waiting, no "human error" (other than your own!) and no attitude. Perhaps a sorry commentary on the state of what we traditionally think of as customer service — but when was the last time you bypassed an ATM to talk to a bank teller?
Mark Burr
Macy's? Well, maybe. But Safeway? I won't call it a blunder and I could be proved wrong. However, it's a far stretch to think that this is either a customer expectation or an enhancement to the experience. Seems to me Safeway has lost its way.
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Diamonique 0.75 ct tw 100-Facet Stud Earrings,14K Gold is rated 4.1 out of 5 by 59.
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Rated 4 out of 5 by SSpeed2015 from Darling Earrings The earrings are adorable but the post does seem to be much thinner than typical 0.7m. QVC needs to post the size of the post so people can find proper backs. If you use the backs these come with the earrings will Absolutly fall off, guaranteed!
Rated 3 out of 5 by Marytam from Beautiful stone Disappointed with the earring back, very very small..


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Chris Woods IL - Chicago 3940 HQ
Chris Woods
I have been in the mortgage business for the past 12 years and with Guaranteed Rate for the past 10 years. Before that I was in the restaurant industry and just needed a change. I love all aspects of the real estate industry with helping people go from renting a home to buying their first home. I like working with all my past clients that I've had for 10 years, and watching them go from their first home as a condo to the next home as a single family house and hearing about their family growing and moving on. I graduated Texas State University in 1996 with a degree in Broadcast Journalism. I believe that this degree has helped me communicate more with my clients and also people in general. I have lived in Roscoe Village for the past 15 years with my wife Amy and have a four year old son to keep me moving. My hometown is Houston, but have been in Chicago for the past 20 years and enjoy the city very much. You can't beat Chicago as a sports town and something to do every day, even in the winter.
"The response from Kathy was amazing and helped minimize our stress."
Michael A. - Evanston IL | Sep 2022
"Chris Woods is incredibly easy to work with, receptive to feedback and questions, and very quick to adjust, and look out for his customers during these unique times in the market."
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"Our loan process went smoothly and the communication around everthing was clear and efficient."
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"Amazing and knowledgeable staff to guide us through the entire loan process."
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"Chris Woods has been involved in two of my refinances and this recent house purchase. Every time we use his services things couldn't be easier."
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"Chris is always a pleasure to work with and an expert on your home financing needs. We've worked with Chris several times over the last 7+ years for new home purchases to refinancings and the process has always been seamless. Not only is his pricing super competitive, but he is also able to deliver on condensed time constraints and is very communicative during the process. I would definitely use Chris again for any future financing needs and have recommended him to family and friends."
George H. - Chicago IL | Jan 2023
3940 North Ravenswood
chris.woods@rate.com
Chris Woods at Guaranteed Rate (NMLS #223625) at 3940 North Ravenswood Chicago, IL
Chris Woods at Guaranteed Rate (NMLS #223625)
Chris Woods NMLS ID: 223625; FL - LO114050, TX - Licensed, GA - 34419, WI - 223625, IL - 031.0004410, MD - 223625, MI - 223625


Dinsmores Split Shot 1-Shot Dispensers feature environmentally friendly tin split shot that is popular with fly and spinning anglers around the world. This award winning product includes a green cushioned, egg-shaped design.
Great Product, hard to find.
Works OK. Thats a cheer!
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Comments: These are bigger than I expected, would like to see a dime in the picture when they are showing size for refrence. I will use them amyway just for steelhead.
three sizes smaller than BB!
Great, non toxic shot and dispenser.
Comments: I only use Dinsmore shot.
Comments: I use these for float fishing and they are great.
Comments: I like dark shot for float fishing for trout. Other brands are often shiny (but they do darken with age). These soft shot crimp easily and do not damage light lines. Very costly for the number you get.
Comments: These are great NON TOXIC shots. Just buy one five shot dispenser and buy these large singles to refill with.
Comments: Don't really have anything bad to say. I really like the size of the dispenser. It makes it very easy to carry in just about any pocket and takes up very little room unlike some of the other dispensers I've used. All in all this is a nice product to own.


After a successful career as President of the Swedish-American Chamber of Commerce, Inc. New York, (SACC New York) for 17 years, Renee Lundholm founded RL Strategies in 2017 to build on her experience in promoting Swedish American business. Her many years at SACC New York has given her a unique platform and a vast network within the Swedish-American business community.
During her tenure at SACC Renee grew the Chamber to become the largest Swedish Chamber of Commerce outside Sweden, worldwide. She also launched numerous new annual programs.
One of Renee's most notable successes is the founding of the Swedish-American Executive Women's Conference and Network – EWC, which created a network of 2,500 executive women from both sides of the Atlantic. This annual conference offers executive women a chance to compare notes and share economic and cultural strengths and ideas. The first Executive Women's Conference was held in New York in October 2003. The conference has evolved into a leading forum for addressing new challenges and increasing opportunities that women will encounter as leaders in the 21st century.
On Renee's initiative the Green Summit was launched in 2008 and has served as a forum for industry leaders to discuss the most important environmental issues of our time. It has addressed such topics as the growing pressures of global urbanization, water, sustainability in the food chain, and the future of food, just to mention a few.
Renee also initiated Innovate46, a high-level event showcasing the most innovative ideas and brightest entrepreneurs from Sweden. This yearly conference is now the forum in New York to meet extraordinary Swedish startup talents and entrepreneurs.
Renee lent her expertise to the Chinese-American Chamber of Commerce in creating fundraising events in cooperation with the late President George H. W. Bush and his brother Prescott Bush, at the time Chairman of the Chinese-American Chamber. She also worked in Rudolph Giuliani's successful campaign for Mayor of New York City.
During her time at SACC New York, she also served on the board of The Foreign Association (FPA), a non-profit organization founded in 1918, dedicated to inspiring the American public to learn more about international issues.
Renee was also a board member of Swedish Chambers International, an association of all Swedish Chambers outside of Sweden. Recently she was elected to the Board of Directors of the House of Sweden in Washington, D.C., and she continues to serve on the Board of the Swedish-American Chamber of Commerce.


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Pierce Idaho
Bald Mountain, Deer Creek Reservoir, Logging Museum & More!
Piercewebinkdesigning@gmail.com2021-08-31T21:05:07+00:00
We Invite You To Explore
Pierce Idaho!
In 1860, Captain E.D. Pierce and a half- dozen gold seeker were led though the mountains by secret route by Chief Timothy's daughter, Jane. With this discovery of gold in Canal Creek, thousands of miners poured into the area in search of gold. In 1861, Pierce was established, the first town in Idaho. In 1862, the territorial courthouse was built; making it the first government building in Idaho. The court house still stands today. In the 1890s, 'green gold'- timber- was in great demand, and the largest stand of white pine in the nearby hills. The timber industry is still a thriving industry surrounding The Pierce area.
See a list of all Pierce's Businesses
Play in Pierce
Bald Mountain Ski Area:
(www.skibaldmountain.com | 208-464-2311)
Experience this amazing ski hill located in the midst of the Clearwater National Forest.
Bald Mountain Ski Area is located amongst the vast Clearwater Mountains along the Gold Rush Historic Byway in North Central Idaho.
The Clearwater Ski Club offers your whole family affordable, winter fun on land leased from Potlatch Corporation. Since establishment in 1959, this "close to you" ski hill offers terrain for every level of skier and snowboarder.
Elevation – 4,000′ at the lodge and 4800′ at the top.
140 Acres of Varied Terrain
684 Feet Vertical Drop
1 Rope Tow (600 feet)
1 T-Bar (3200 feet)
Average Annual Snow Fall – 100 inches
Day Lodge with Cafe'
Rental Shop with Skiing and Snowboarding Equipment
Free Bus transportation from Orofino.
The Terrain:
Terrain MapBeginner 25%
Intermediate 40%
Advanced 20%
Deer Creek Reservoir:
(located 11 miles from pierce)
Deer Creek Reservoir in Clearwater County is 64.6 acres at an elevation of 3,316 feet above sea level. There is a no-wake restriction on the reservoir at all times. Non-motorized access is permitted year-round. Motorized access to the reservoir is permitted from May 20 through September 30 when the gate is open.
This beautiful mountain reservoir was built specifically for trout fishing. Rainbow trout are stocked from spring through fall in this remote setting for high catch rates from shore or a boat. To add variety, this lake is also stocked with sterile brook trout and tiger trout. Boaters, please observe the no-wake restriction.
J. Howard Bradbury Logging Museum
Located in a 1928 log cabin, the J. Howard Bradbury Logging Museum is a source of community pride, preserving the local mining and logging history, as well as other artifacts. The grounds are adjacent to a park with a picnic area and Idaho's first public building, the 1862 Shoshone County Courthouse (See below left). Special group tours are available. Location: Main Street, Pierce, ID 208-464-2677. Hours: Mid-June to Mid-October: Fridays and Saturdays 12:00 pm to 4 pm. After Labor Day: Saturdays only 12:00 pm to 4 pm. Admission: By donation.
Behind the Logging Museum in Pierce stands the first government building in Idaho – the Shoshone County Courthouse of 1862.
Other Area Attractions:
Pierce Free Public Library
(208)464-2823 | 208 S Main St, Pierce | http://www.piercepubliclibrary.com/
Our Lady of the Woodland Catholic Church
A log church from the early 1900's, which is still in use today. Located just around the corner from the Historic Chinese Cemetery. Though the bones were exhumed and returned to China after the workers left, the cemetery remains as a reminder of the area's heritage.
Pierce Community Center
(208)464-2443 | 105 Carl St, Pierce | https://www.facebook.com/PCC83546/
(208)464-2677 | 103 S Main St, Pierce | https://www.facebook.com/JHowardBradburyLoggingMuseum/
Located in a 1928 log cabin, the J. Howard Bradbury Logging Museum is a source of community pride, preserving the local mining and logging history, as well as other artifacts. The grounds are adjacent to a park with a picnic area and Idaho's first public building, the 1862 Shoshone County Courthouse (See below left). Special group tours are available. Location: Main Street, Pierce, ID 208-464-2677. Hours: Mid-June to Mid-October: Fridays and Saturdays 12:00 pm to 4 pm. After Labor Day: Saturdays only 12:00 pm to 4 pm. Admission: By donation. Behind the Logging Museum in Pierce stands the first government building in Idaho – the Shoshone County Courthouse of 1862.
Campbells Pond
10.5 miles from Pierce | https://idfg.idaho.gov/ifwis/fishingplanner/water/?id=11786
Pierce Mtn GEM Team Events
https://www.facebook.com/Pierce-Idaho-Mountain-Gem-Community-221778661724350
The Gold Rush Historic Highway 11
The Gold Rush Historic Highway 11 ends in Headquarters at milepost 42.5. By turning left onto USFS Road #247, you enter the Gateway to the Clearwater Backcountry and are taken to the North Fork of the Clearwater National Forest, with many camping, hiking, fishing and other recreational adventures.
(208-464-1057 | 205 South Main St, Pierce | gdgerot@hotmail.com)
This charming flower and gift shop is located in the heart of Pierce Idaho. Don't miss dropping in and seeing their one of a kind creations and custom area prints and paintings!
Eat in Pierce
Timber Inn
(208)464-2736 | 2 South Main St, Pierce | http://www.idahotimberinn.com/
The Vug
(208)827-0917 | 114 South Main St, Pierce | https://www.facebook.com/TheVUG83546/
The Market in Pierce
(208)464-2332 | 501 South Main St, Pierce | http://www.themarketinpierce.com/
Elk Snout Eatery & Mercantile
204 Main St, Pierce | https://www.facebook.com/elksnouteateryandmercantile/
Restaurants, Bakeries , Deli & Catering
Chubby's Pizza
Chubby's Pizza in Beautiful down town Pierce USA "merica". Serving Delicious Pizza and Ice cold Beer. Monday Thru Friday………………3pm to Read more...
Elk Snout Eatery and Mercantile
Serving Black Rifle Coffee Company drinks, breakfast and lunch. Gifts, clothing and local souvenirs! Read more...
Miss Lily's Gold Rush Saloon
Miss Lily's Gold Rush Saloon is located in the heart of beautiful Pierce Idaho. Miss Lily's is a family friendly Read more...
Stay in Pierce
The Outback
(208)464-2171 | 211 South Main St, Pierce | http://outbackidaho.com/
The Pioneer Inn
(208)464-2208 | 412 South Main St, Pierce
Hartig Family RV & Camping
(208)464-2253 | 168 Timberline Drive, Pierce | Janice.hartig@yahoo.com
Jeter RV Court
(208)464-2337 | 219 Canal St, Pierce
Hotel, Motel, Cabins, RV Parks & Lodging
Pioneer Inn
We offer a comfortable stay while enjoying Pierce! Whatever your plans are, know that you have a safe, comfortable place Read more...