United States v. Darius Freeman , 680 F. App'x 181 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4329
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARIUS DONNELL FREEMAN,
Defendant - Appellant.
No. 15-4330
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WINCY JOSEPH, a/k/a Joseph Wincey,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:13-cr-00080-RLV-DSC-1; 5:13-cr-00080-RLV-DSC-
2)
Submitted: August 23, 2016 Decided: February 24, 2017
Before KING, DUNCAN, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
C. Melissa Owen, TIN, FULTON, WALKER & OWEN, PLLC, Charlotte, North
Carolina; Brian M. Aus, BRIAN AUS, ATTORNEY AT LAW, Durham, North
Carolina, for Appellants. Jill Westmoreland Rose, United States
Attorney, Anthony J. Enright, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Darius Donnell Freeman and Wincy Joseph appeal their
convictions for armed bank robbery, in violation of 18 U.S.C.
§§ 2113(a), (d), 2 (2012) (Count 1), and using, carrying,
brandishing, and possessing a firearm during, in relation to, and
in furtherance of a crime of violence (bank robbery), in violation
of 18 U.S.C. §§ 924(c), 2 (2012) (Count 2). Freeman also appeals
his convictions for two additional counts: carjacking, in
violation of 18 U.S.C. § 2119 (2012) (Count 3), and using,
carrying, brandishing, and possessing a firearm during, in
relation to, and in furtherance of a crime of violence
(carjacking), in violation of 18 U.S.C. § 924(c) (Count 4). They
argue: (1) the district court erred in denying Freeman’s motion to
suppress; (2) Freeman’s and Joseph’s § 924(c) convictions based on
bank robbery must be vacated because bank robbery is not a crime
of violence; (3) the district court plainly erred in providing
jury instructions that defined bank robbery as a crime of violence;
(4) Freeman’s second § 924(c) conviction must be vacated because
carjacking is not a crime of violence; and (5) the district court
plainly erred in providing jury instructions that defined
carjacking as a crime of violence. We affirm.
As to the first claim, when reviewing a district court’s
ruling on a motion to suppress, we review factual findings for
clear error and legal determinations de novo, construing the
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evidence in the light most favorable to the prevailing party.
United States v. Lull, 824 F.3d 109, 114-15 (4th Cir. 2016).
“[T]he reliability of relevant testimony typically falls
within the province of the jury to determine.” Perry v. New
Hampshire, 132 S. Ct. 716, 720 (2012). Accordingly, the
Constitution protects a defendant from a conviction based on
evidence of questionable reliability not by automatically
excluding such evidence, “but by affording the defendant means to
persuade the jury that the evidence should be discounted as
unworthy of credit.” Id. at 723. Due process is implicated only
when the “evidence is so extremely unfair that its admission
violates fundamental conceptions of justice.” Id. (internal
quotation marks omitted). “When no improper law enforcement
activity is involved,” the reliability of such evidence can be
proven through normal trial procedures, such as vigorous cross-
examination, special jury instructions where needed, and the
requirement that guilt be proven beyond a reasonable doubt. Id.
at 721.
Here, Freeman contends that the photographic lineup in which
the victim identified Freeman as the carjacker was unduly
suggestive and the identification should have been suppressed. He
bases this claim on his assertion that the victim had been informed
by police beforehand that her car was linked to a bank robbery and
she had previously been shown photographs of the bank robbery. In
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particular, Freeman argues that the district court clearly erred
in finding that the police did not show the victim any bank robbery
photographs before conducting the photo lineup.
We perceive no clear error. During the suppression hearing,
the victim testified that she did not see photographs of the bank
robbery until after the photo lineup. But a few days before the
photo lineup, a detective who had spoken with the victim on the
telephone sent an email to another detective saying that “[the
victim] states that she has viewed the bank robbery pictures and
is 100% positive [one of the robbers] is the one that carjacked
her.” (J.A. 217). Freeman argues that the victim’s testimony is
contradicted by the email. But even allowing this point, there is
no evidence that police showed the victim the robbery pictures.
These photos had been displayed by local news media, and all four
of the police officers who testified at the suppression hearing
swore that they did not show the victim any bank robbery pictures
before the photo lineup. Therefore, we conclude the district court
did not clearly err in finding the identification was not
impermissibly tainted, and did not err in denying Freeman’s motion
to suppress.
Turning to the questions of whether bank robbery and
carjacking are crimes of violence, because the Appellants did not
raise these issues in the district court, our review is for plain
error. See United States v. McNeal, 818 F.3d 141, 148 (4th Cir.),
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cert. denied, 137 S. Ct. 164 (2016), and cert. denied sub nom.
Stoddard v. United States, 137 S. Ct. 164 (2016). To prevail on
plain-error review, “a defendant must show (1) that an error was
made; (2) that the error was plain; and (3) that the error affected
his substantial rights.” Id. (internal quotation marks omitted).
Even if those three prongs are satisfied, we may exercise our
discretion to correct a plain error “only when necessary to prevent
a miscarriage of justice or to ensure the fairness, integrity or
public reputation of judicial proceedings.” Id. (internal
quotation marks omitted).
We have held that bank robbery is a crime of violence under
the force clause of § 924(c)(3)(A). McNeal, 818 F.3d at 153.
McNeal directly forecloses the Appellants’ argument that bank
robbery is not a crime of violence for purposes of their § 924(c)
convictions and their claim of an erroneous jury instruction, and
these claims therefore entitle them to no relief.
Finally, we recently held that carjacking is a crime of
violence under the force clause of § 924(c)(3)(A). United
States v. Evans, ___ F.3d ___, ___, No. 16-4094, 2017 WL 444747,
at *1 (4th Cir. Feb. 2, 2017). Thus, Freeman’s argument that
carjacking is not a crime of violence for purposes of his second
§ 924(c) conviction and his challenge to the relevant jury
instructions fail under Evans.
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Accordingly, we affirm the judgment of the district court.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
AFFIRMED
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