WIENER, Circuit Judge:
Defendants-Appellants Clarence Bernard Buck and Kendal Allen (collectively "defendants") were charged with various crimes, including robbery in violation of the Hobbs Act, 18 U.S.C. § 1951(a). They proceeded to jury trial, but three days into it the district court granted their motions for a mistrial. At the conclusion of the second jury trial, Buck and Allen were convicted on all counts. Buck was sentenced to 1,846 months of imprisonment, and Allen was sentenced to 1,435 months. They now appeal, contending that the retrial of their case violated their constitutional rights and that the classification of Hobbs Act robbery as a crime of violence was error. In addition, Buck asserts that the Hobbs Act robbery jury instruction was flawed, the abduction enhancement to his sentence was error, and his restitution obligation should be shared with others; and Allen appeals his 119-year sentence as a violation of the Eighth Amendment and the introduction of his statements to a government witness as reversible error. We affirm.
Buck and Allen, along with other individuals, were accused of participated in armed robberies of various T-Mobile stores and a flea market jewelry store in the Houston area between November 2012 and July 2013. The robberies followed similar patterns, including forcing store employees from the front of the store to the back, where cellular phones were stored. All of the robberies in question included defendants or their co-conspirators brandishing firearms during the commission of those crimes.
In March 2015, defendants entered pleas of not guilty and proceeded to trial by jury. Three days into the trial, it came to light that the government had not turned over all of the required discovery materials, including witness statements, a police interview with Buck, and two police lineups. The district court held a hearing in which it admonished the government for its failure to turn over such materials. The court then granted defendants' motions for mistrial, but it denied their motions for dismissal of the case with prejudice.
A second jury trial took place some five months later, in August 2015. Between the first and second trials, defendants again filed motions to dismiss the case with prejudice, which the court denied in a summary order. The jury convicted Buck and Allen of conspiracy to interfere with commerce by robbery, in violation of the Hobbs Act, 18 U.S.C. § 1951(a). Buck was also convicted of (1) seven counts of committing, or aiding and abetting, Hobbs Act robbery, (2) seven counts of using and carrying, or aiding and abetting the use of and carrying of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A), and (3) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Allen was convicted of six counts of Hobbs Act robbery and six counts of using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A).
The district court sentenced Buck to concurrent sentences of 240 months of imprisonment on the robbery counts; a consecutive 22-month term on the charge of being a felon in possession of a firearm; a mandatory consecutive 84-month term of imprisonment on one firearm count; and five additional consecutive terms of 300 months of imprisonment on the remaining firearm counts, for a total of 1,846 months of imprisonment. The court sentenced Allen to 151 months for the robberies; a mandatory consecutive term of 84 months; and four additional consecutive terms of 300 months of imprisonment on the firearms counts for a total of 1,435 months of imprisonment. Both defendants appeal their convictions and sentences.
Defendants challenge the second jury trial for different reasons. Allen insists that the second trial amounts to double jeopardy and that his constitutional rights under Brady v. Maryland
The Fifth Amendment protects individuals from "repeated prosecutions for the same offense."
The government may not use a jury as a focus group; neither may it use a jury trial as a discovery tool.
In this case, it was not until the third day of the initial trial that it came to light that the government had failed to turn over some discovery materials, including various interviews with witnesses — including Buck — and records of police line-ups. When that matter was brought to the attention of the district court, it held a hearing and granted defendants' motion for mistrial, but denied defendants' motions for dismissal of the case with prejudice.
Allen contends that the government "goaded" him into seeking a mistrial because the trial was "not going well" for the government and defense counsel had pointed out weaknesses in the government's case. "Goading" is narrowly defined, and "[g]ross negligence by the prosecutor, or even intentional conduct that seriously prejudices the defense, is insufficient" to be characterized as "goading."
The government counters that it had no prior knowledge of the missing items of discovery. It says that it asked the state agencies that initially investigated defendants' crimes if they had turned over "everything" in their possession, to which the state agencies responded affirmatively. The government also relies on its open-file discovery policy and on the fact that it continued to produce materials promptly as it received them.
It is true that in the first trial, the government heard defendants' opening statements and their cross-examination of government witnesses, and had the opportunity to gauge jury reactions to their own
Allen also urges that the government failed to meet its constitutional obligations imposed by Brady.
Buck acknowledges that his being retried is not barred by the double jeopardy clause. Instead, Buck contends that, given the concerns underlying double jeopardy and the rules of procedure,
As to the first factor, the government again asserts that the failure to disclose the evidence in question was not intentional. Generally, a district court will not impose severe sanctions in the absence of bad faith.
As to the second factor, Buck — like Allen — argues that by hearing his opening statement and his defense theory in the first trial, the government was given a significant advantage. However, there is no evidence that defendants were prejudiced by the first trial. Thus, this factor is neutral.
The third factor weighs against dismissal with prejudice as a sanction because Buck had almost five months to prepare a new strategy based on the new discovery.
As to the fourth factor, Buck does not address other relevant circumstances, but relies exclusively on policy arguments that his case should be dismissed with prejudice as a sanction for the government's discovery violations. Even if we were persuaded that such policy arguments weigh in favor of dismissal, the district court did not abuse its discretion in
Defendants insist that their Hobbs Act robbery convictions do not qualify as crimes of violence under 18 U.S.C. § 924(c)(3)(A) and that they cannot qualify under § 924(c)(3)(B) because the clause is vague and crediting it would violate due process.
Because this challenge is asserted for the first time on appeal, we review it for plain error.
Section 924(c) punishes "any person who, during and in relation to any crime of violence uses or carries a firearm ...."
Section 924(c) contains two definitions of a crime of violence. Under § 924(c)(3)(A), a crime of violence is a felony that "has an element the use, attempted use, or threatened use of physical force against the person or property of another."
Whether a particular offense is a crime of violence is a question of law for the court to resolve.
In United States v. Hill, the Second Circuit concluded that the Hobbs Act's
Buck also objects to the district court's use of the Fifth Circuit pattern jury instruction
We review the use of a particular jury instruction for abuse of discretion.
The Hobbs Act imposes criminal penalties on, "[w]hoever 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...."
Buck submitted proposed jury instructions, which included the requirement that the government prove the "defendant knew that his conduct, or the conduct of another which he aided or abetted, would or could materially obstruct, delay, or affect commerce." He requested that the final paragraph of the portion of the pattern jury instruction, which states that the government is not required to prove intent, knowledge, or anticipation of an affect on commerce, not be submitted to the jury. The district court denied Buck's request and used the entire Hobbs Act pattern jury instruction to instruct the jury.
We have held that the Hobbs Act "does not require that the defendant have specifically intended to affect interstate commerce," or that he acted with knowledge interstate commerce would be affected.
Buck objects to an enhancement of his sentence based on abduction.
We review the district court's interpretation of the Sentencing Guidelines de novo.
The district court applied a four-level enhancement for abduction to Buck's base offense level, pursuant to Sentencing Guideline § 2B3.1(b)(4)(A). That provision allows enhancement "[i]f any person was abducted to facilitate commission of the offense or to facilitate escape ...."
Buck notes that the presentence report did not specifically address the conduct that led to the abduction enhancement. He assumes that it refers to the movement of victim employees from the front to the back of the T-Mobile stores during the robberies of those stores.
We have repeatedly construed the "abduction" enhancement as applicable when a victim is forced from one part of a
Buck claims that his restitution obligation should be allocated to other parties, including cooperating witnesses Deandre White and Trent Davis, and to Rafey Khan and Zeeshan Yasin, two individuals who profited by purchasing the stolen items.
We review whether a restitution award is "permitted by the appropriate law" de novo.
The district court ordered Buck to pay $789,271.74 in restitution to the robbery victims. That court's judgment specified that Buck's obligation was "joint and several with any co-defendant who has been or will be ordered to pay restitution." Co-defendant Allen was also held responsible for the full amount of restitution, and co-defendant Donald Holmes was held responsible for a portion of the restitution. However, White, Davis, Khan, and Yasin, were not convicted of the robberies that gave rise to this restitution. White was an unindicted co-conspirator. Davis, Khan, and Yasin were named in the original indictment as Hobbs Act co-conspirators, but they ultimately entered pleas of guilty to different offenses. T-Mobile and the jewelry store were "directly and proximately harmed as a result of the commission" of the Hobbs Act robberies, not the crimes for which those witnesses were convicted.
Allen argues that his 119-year sentence violates the Eighth Amendment because it is effectively a life sentence which is reserved for only the most "existential" crimes. He also insists that his sentences should run concurrently.
The Eighth Amendment prohibits cruel and unusual punishment.
To reach Allen's 119-year sentence, the district court imposed terms of 151 months for each of his six robbery convictions under the Hobbs Act, then added a series of consecutive terms for the use of firearms during the robberies, as required by 18 U.S.C. § 924(c)(1). Section 924(c) mandates a minimum sentence of seven years of imprisonment when a defendant brandishes a firearm during and in relation to a crime of violence.
A sentence imposed within statutory limits may nevertheless violate the Eighth Amendment if it "is so disproportionate to the crime committed that it shocks human sensibilities."
Finally, Allen urges that admission of the statements he made while he was in jail with a government witness, Son-Tanna Hewitt, deprived him of a fair trial.
We review preserved challenges to the admission of evidence for abuse of discretion.
Hewitt was not involved in the November robberies; he was only involved in the July robbery, to which Allen asserts he had no connection.
Allen argues that the use of Hewitt's jailhouse testimony is essentially an ambush by the prosecution because "confessions" are exempt from disclosure under Rule 16. Allen insists that, but for Hewitt's testimony, he would have been acquitted because the only other evidence against him was "a murky video and three highly discreditable witnesses."
The Supreme Court has repeatedly held that introduction of a defendant's statement to a cellmate does not violate the Sixth Amendment right to counsel.
For the foregoing reasons, we AFFIRM all convictions of Buck and Allen as well as the sentences imposed by the district court.
