United States v. Anthony Caldwell ( 2021 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4019
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY LAMONT CALDWELL,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Max O. Cogburn, Jr., District Judge. (3:17−cr−00040−MOC−DSC−1)
Argued: May 5, 2021 Decided: August 3, 2021
Before NIEMEYER, WYNN, and RICHARDSON, Circuit Judges.
Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge Niemeyer
and Judge Richardson joined.
ARGUED: Chiege Ojugo Kalu Okwara, Charlotte, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North
Carolina, for Appellee. ON BRIEF: William T. Stetzer, Acting United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.
WYNN, Circuit Judge:
Anthony Caldwell appeals from his conviction after a jury trial for charges related
to bank robbery and firearm possession. He raises numerous challenges to his convictions,
including to the district court’s denial of his motion to suppress and to various evidentiary
rulings. We affirm.
I.
On the evening of December 9, 2016, two young men wearing dark clothing, masks,
and gloves entered a Wells Fargo bank in Charlotte, North Carolina. Each was armed with
a revolver. They stole nearly $5,800 in cash from the bank’s tellers before fleeing in a car.
The pair were later identified as Michael Cole and Rahshie Mitchell, both of whom were
minors at the time. Unbeknownst to them, two GPS tracking devices were embedded in the
stolen cash.
Two officers tracked the GPS signal to an address within a couple miles of the bank,
where they stopped and exited their vehicle. One of the officers heard rustling in the woods
and, turning to look, witnessed three individuals running away. The officers began to
pursue, but for safety reasons decided to call in backup, including K-9 and helicopter units.
Those additional units arrived within minutes, and the K-9 handler announced that a search
with the dog would commence. The police presence was not subtle: between their
flashlights, the blue lights and spotlights on their cars, the helicopter above, and the sounds
of communications between the officers on site and over the radio, it would have been clear
to anyone in the area that the police were there and were engaged in a manhunt.
2
Nevertheless, Caldwell remained hidden, shielding himself amid vines and weeds
along a fence. One officer “walked right past” Caldwell in the brush, only noticing him
when the police dog alerted to his presence. J.A. 1252. 1 The K-9 unit ultimately
apprehended Caldwell, with the dog biting his arm in the process. A black bag containing
nearly all of the missing cash as well as one of the GPS trackers was found underneath
Caldwell.
Caldwell told the police he had been carjacked by two men while sitting in a
Chevrolet Impala near the Wells Fargo. At trial, he testified that the carjackers had pistol-
whipped him several times and forced him to flee with them; that he passed out from being
hit in the head; and that he only woke up when the police dog bit him.
The officers were not convinced by Caldwell’s story and arrested him. They
continued the search, but were unsuccessful in locating Cole and Mitchell. Arrest warrants
were eventually issued for the two teenagers after DNA evidence linked each of them to
the robbery.
Shortly after arresting Caldwell, officers found the Impala nearby. In plain view in
the back seat were a black jacket, a North Carolina license plate, and a black revolver. The
car’s rear sported an invalid temporary license plate. 2 Officers located a black hooded
sweatshirt and glove along the fence, as well as a ski mask on the ground next to the vehicle.
They also found “two loose $20 bills of U.S. currency, a cash wrapper that would go around
1
Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.
2
Only rear, not front, license plates are required in North Carolina.
3
a stack of bills, and [the other GPS] cash tracker” in the front yard of the address where the
suspects had fled. J.A. 1280.
The officers sealed the vehicle at the scene before towing it to the law enforcement
center, where they searched it after obtaining a warrant. A search of the passenger
compartment revealed a “large black jacket, the black Rohm revolver, [a] black ski mask,
[a] black toboggan, [and] black gloves.” J.A. 1314. However, officers did not search the
vehicle’s trunk because the car battery was dead, rendering the trunk-opening mechanism
inoperable.
After the initial search, police moved the vehicle to an impound lot. Nearly two
weeks later, on December 22, detectives jump-started the car’s battery and opened the
trunk. The trunk contained a silver revolver, black gloves, and a black skullcap.
On November 14, 2017, a federal grand jury returned a four-count superseding
indictment charging Caldwell with conspiracy to commit bank robbery, in violation of 18
U.S.C. § 2113(a) and (d) (Count I); bank robbery, in violation of 18 U.S.C. §§ 2 and
2113(a) and (d) (Count II); possession of a firearm in furtherance of a crime of violence,
in violation of 18 U.S.C. §§ 2 and 924(c) (Count III); and possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count IV). Caldwell pleaded not
guilty and requested a jury trial.
Caldwell filed a motion to suppress all the evidence found in his vehicle, alleging
that the searches violated his constitutional rights under the Fourth Amendment. After
conducting a hearing, the district court denied the motion, and a jury trial commenced in
4
January 2018. After deliberating, the jurors reported a split vote, leading the district court
to declare a mistrial.
The case was retried. During the second trial, Cole and Mitchell each testified that
they had known Caldwell before the robbery and that he had recruited them to commit the
crime, including providing weapons and details about the bank. They also testified that
Caldwell served as the getaway driver. Caldwell testified on his own behalf, claiming that
he had not previously known Cole and Mitchell and repeating his story that they carjacked
and pistol-whipped him.
The jury returned a guilty verdict on all four Counts. As to Count III, possession of
a firearm in furtherance of a crime of violence, the jury found that Caldwell (or others aided
and abetted by him) brandished the firearm.
The district court sentenced Caldwell to 284 months imprisonment: 60 months on
Count I and 200 months on Counts II and IV, all to be served concurrently, followed by 84
months on Count III, to be served consecutively. Caldwell timely filed a notice of appeal.
II.
Caldwell raises numerous challenges to the district court’s handling of his motions
before, during, and after trial, as well as to its evidentiary rulings and trial-management
decisions. Further, for the first time in his reply brief, Caldwell argues that two recent
Supreme Court decisions require us to vacate his firearm convictions. We find none of his
arguments persuasive and therefore affirm.
5
A.
We begin with Caldwell’s challenge to the district court’s denial of his motion to
suppress. In evaluating this claim, we review legal conclusions de novo and factual findings
for clear error and construe all evidence in the light most favorable to the government.
United States v. Vaughan, 700 F.3d 705, 709 (4th Cir. 2012).
Caldwell alleges that both searches of the vehicle were illegal: the December 9
search because the police neglected to follow proper warrant procedures, and the December
22 search of the trunk because the warrant was no longer valid and no exigent
circumstances applied. 3 The district court concluded that under the automobile exception,
a warrantless search of the vehicle “as it sat in the woods on the night of [the] robbery”
would have been justified, and that the police also could have conducted an inventory
search of the vehicle at the police station or after the car was impounded. United States v.
Caldwell, No. 3:17-cr-00040-MOC-DSC, 2018 WL 491782, at *2 (W.D.N.C. Jan. 19,
2018). We conclude that the automobile exception justified both searches. 4
Under the Fourth Amendment, law enforcement officers are generally required to
obtain a warrant before conducting a search. Maryland v. Dyson, 527 U.S. 465, 466 (1999)
3
The vehicle was owned by Caldwell’s girlfriend’s son. Nevertheless, as Caldwell
was driving the vehicle shortly before its seizure, the government does not contest that he
can raise a Fourth Amendment challenge to the searches. See United States v. Terry, 909
F.3d 716, 720 (4th Cir. 2018).
4
We “may affirm on any grounds apparent from the record.” United States v. Ali,
991 F.3d 561, 571 (4th Cir. 2021) (internal quotation marks omitted). Because we affirm
the district court’s decision under the automobile exception, we do not reach the parties’
arguments regarding other potentially applicable exceptions or the validity of the warrant.
6
(per curiam). However, the automobile exception allows police to conduct a warrantless
search of a readily mobile vehicle if they have probable cause to do so. Id. at 467. Probable
cause “exist[s] where the known facts and circumstances are sufficient to warrant a man of
reasonable prudence in the belief that contraband or evidence of a crime will be found.”
Ornelas v. United States, 517 U.S. 690, 696 (1996).
Probable cause was present here. The officers located the Impala at the site where
they had followed the GPS trackers immediately after the robbery. An officer viewed three
individuals fleeing the scene. Despite the significant commotion and large police presence,
Caldwell did not call out for officer assistance, and instead was only located by a police
dog—which found him hidden in brush on top of a bag containing a GPS tracker and
$5,614 of the $5,791.60 that had been stolen. Police observed that the vehicle had an invalid
temporary license plate, with a permanent license plate on its back seat. They located a
black hooded sweatshirt, a glove, loose currency, a cash wrapper, and a second GPS tracker
on the ground in close proximity to the vehicle, and a ski mask on the ground next to it.
They observed a revolver and black jacket in plain view on the back seat. The clothing and
revolver matched the general description of that used by the robbers. Caldwell himself
claimed that he had been carjacked in the Impala, by individuals the police had strong
reason to believe had perpetrated the bank robbery.
These numerous observations gave the officers probable cause to believe that the
vehicle contained evidence related to the bank robbery. Therefore, pursuant to the
automobile exception, they were entitled to search the entire vehicle, including the trunk,
without obtaining a warrant. United States v. Ross, 456 U.S. 798, 825 (1982) (where the
7
automobile exception applies, “it justifies the search of every part of the vehicle”). That
the officers chose to take the extra precaution of obtaining a warrant prior to the December
9 search does not affect the legal conclusion that a warrantless search was permissible.
Additionally, when a warrantless search of a vehicle could have been conducted on
the scene pursuant to the automobile exception, a warrantless search is also justified after
the vehicle has been impounded and immobilized as long as probable cause still exists. 5
Florida v. Meyers, 466 U.S. 380, 382 (1984) (per curiam) (citing Michigan v. Thomas, 458
U.S. 259 (1982) (per curiam); Chambers v. Maroney, 399 U.S. 42 (1970)); see United
States v. Gastiaburo, 16 F.3d 582, 586 (4th Cir. 1994) (noting that “the justification to
conduct a warrantless search under the automobile exception does not disappear merely
because the car has been immobilized and impounded” and collecting cases). 6 Even where
5
The district court found that the Impala “was a lawfully impounded vehicle.” J.A.
204.
6
Years after this Court’s opinion in Gastiaburo and the Supreme Court’s opinions
in Meyers, Thomas, and Chambers, the Supreme Court issued its opinion in Arizona v.
Gant. Gant narrowed certain exceptions to the warrant requirement in order to keep the
exceptions rooted in their justifications. Arizona v. Gant, 556 U.S. 332, 346–47 (2009).
The Court emphasized that a broader interpretation “would serve no purpose except to
provide a police entitlement,” which was inappropriate because “it is anathema to the
Fourth Amendment to permit a warrantless search on that basis.” Id. at 347. This Court has
recently reiterated the same. United States v. Davis, 997 F.3d 191, 202–03 (4th Cir. 2021).
And notably, the mobility of vehicles is the primary (though not the only) justification for
the automobile exception. See Collins v. Virginia, 138 S. Ct. 1663, 1669–70 (2018) (noting
that ready mobility is the “core justification for the automobile exception” but that an
“additional rationale” exists, namely, that mobile vehicles are already pervasively
regulated). It is therefore conceivable that the Supreme Court could someday limit the
current reach of the automobile exception. Cf. Benjamin J. Priester, A Warrant
Requirement Resurgence?: The Fourth Amendment in the Roberts Court, 93 St. John’s L.
Rev. 89, 121–25 (2019) (arguing that recent Supreme Court case law could suggest a
8
a significant amount of time has passed between the impoundment of a defendant’s car and
a subsequent warrantless search, this Court has found that “the passage of time between
the seizure and the search of [the defendant]’s car is legally irrelevant” and the automobile
exception still applies as long as probable cause remains to justify the search. Gastiaburo,
16 F.3d at 587 (upholding search of impounded vehicle conducted thirty-eight days after
impoundment when a new tip gave probable cause to search a previously unsearched
hidden compartment in the vehicle).
Accordingly, when detectives returned to the impounded vehicle on December 22—
thirteen days after impoundment—to jump-start the car battery and search the trunk, they
were justified in doing so without obtaining a warrant. Like in Gastiaburo, the passage of
time did not interfere with the applicability of the automobile exception. Certainly, “there
is no question that time is a crucial element of probable cause.” United States v. McCall,
740 F.2d 1331, 1335 (4th Cir. 1984). But here, probable cause to support the search
willingness by the Court to reconsider the extent of the automobile exception and noting
that “Chambers seems particularly dubious now that warrants can be obtained so quickly”
because “there is little meaningful possibility that evidence will disappear from a motor
vehicle in a secured police facility in the time it would take to obtain an electronic
warrant”).
Nevertheless, Gant did not directly undermine the rationale of Meyers, and we are,
of course, still bound by both Meyers and Gastiaburo. See Payne v. Taslimi, 998 F.3d 648,
654 (4th Cir. 2021) (noting that “[w]e must simply apply [the Supreme Court’s]
commands” because “it remains the Supreme Court’s ‘prerogative alone to overrule one of
its precedents’” (quoting State Oil Co. v. Khan, 522 U.S. 3, 20 (1997))); see also United
States v. Arriaza, 401 F. App’x 810, 812 (4th Cir. 2010) (per curiam) (“Gant does not
undermine this court’s jurisprudence pertaining to warrantless searches of impounded
vehicles.”).
9
remained intact as of December 22 given that officers were not able to access the trunk
during the December 9 search, the trunk remained sealed in the meantime, and officers had
not yet located the second weapon. 7 Therefore, both searches fell well within the
parameters of the automobile exception, and the district court did not err in denying the
motion to suppress.
B.
Next, we review Caldwell’s challenge to the district court’s denial of his motion to
disqualify a witness’s counsel and to exclude witness testimony. We review these decisions
for abuse of discretion. See United States v. Urutyan, 564 F.3d 679, 686 (4th Cir. 2009)
(disqualification of counsel); United States v. Fulks, 454 F.3d 410, 421 (4th Cir. 2006)
(witness testimony).
7
On appeal, Caldwell points to this Court’s decision in United States v. Pratt, 915
F.3d 266 (4th Cir. 2019), which he argues undermines Gastiaburo. Of course, if the two
decisions did conflict, the earlier—Gastiaburo—would govern. United States v. Spinks,
770 F.3d 285, 289–90 (4th Cir. 2014). But they are distinguishable. The issue in Pratt was
whether an extended pre-warrant seizure of a defendant’s property—there, a cell phone—
could become unreasonable with the passage of time. Pratt, 915 F.3d at 271. Here,
Caldwell has not pressed any argument that the extended seizure of the vehicle was itself
unreasonable. Rather, the question is whether the passage of time undermined probable
cause supporting a warrantless search. As we describe above, in these circumstances, it did
not.
We also note that there is nothing in the record indicating whether the car battery
was dead at the time police located the vehicle. However, neither search was performed
until after the car was taken into police custody, meaning that Meyers and Gastiaburo
apply. Accordingly, we need not address whether a car with a dead battery satisfies the
“readily mobile” requirement of the automobile exception. Cf. United States v. Poole, 829
F.2d 37, at *4 (4th Cir. 1987) (unpublished table decision) (automobile exception did not
apply to a deserted car that lacked a battery altogether).
10
Caldwell sought to disqualify the counsel who was representing Mitchell—one of
Caldwell’s teenage coconspirators, who testified against him at trial—and to prevent
Mitchell from testifying. The basis of the motion was that Mitchell’s counsel, Peter
Nicholson, was a public defender based in the same office as Anna McMillan, and
McMillan had represented Caldwell when he initially faced state-court charges related to
the Wells Fargo robbery. Therefore, Caldwell argued that Nicholson was conflicted out of
representing Mitchell for the purposes of Mitchell’s testimony against Caldwell, and that
Mitchell should not be permitted to testify due to the conflict.
The district court conducted a voir dire interview of Nicholson to determine whether
a conflict of interest existed that would require his disqualification or the exclusion of his
client’s testimony. The interview revealed that Nicholson’s coworker, McMillan,
represented Caldwell in matters related to state charges for the Wells Fargo robbery in
December 2016. 8 In February 2018, after Mitchell was arrested for his involvement in the
robbery, Nicholson began representing Mitchell. Nicholson testified that he had only
become aware of his office’s prior representation of Caldwell a few days earlier, that he
did not have access to Caldwell’s files, and that he knew nothing about Caldwell’s case.
The district court determined that because there was no “evidence that [Nicholson] had
information adverse to [Caldwell] which he provided to [Mitchell],” no “actual conflict”
8
The state stopped pursuing the charges against Caldwell soon after his arrest and
ultimately dismissed them. He was federally indicted in February 2017.
11
existed to create any prejudice to Caldwell. J.A. 1471, 1473. Therefore, Mitchell would be
allowed to testify.
However, the district court recognized that under the North Carolina Rules of
Professional Conduct, Nicholson might face an ethical problem arising from an imputed
conflict if he continued representing Mitchell. To resolve this question, Nicholson
contacted the state bar. 9 The bar advised that an imputed conflict existed, but that since it
would take time to appoint a new attorney for Mitchell, it was within the court’s discretion
to allow Nicholson to represent Mitchell during his testimony and withdraw immediately
afterward. Reiterating that there was “no real conflict,” the district court granted Nicholson
permission to represent Mitchell while he testified to avoid further delay of the trial. J.A.
1486. Nicholson ultimately filed a motion to withdraw in the state court five days later, on
the date the jury reached its verdict in Caldwell’s trial.
We find no abuse of discretion in either of the district court’s decisions related to
Nicholson and Mitchell. Certainly, “[f]ederal courts have an independent interest in
ensuring that criminal trials are conducted within the ethical standards of the profession
and that legal proceedings appear fair to all who observe them.” Wheat v. United States,
486 U.S. 153, 160 (1988). And when a potential conflict of interest “is brought to the
9
The North Carolina State Bar permits “any lawyer” to “request informal advice
from the ethics department” of the bar if the lawyer has questions “[a]fter consulting the
Rules of Professional Conduct and the relevant ethics opinions.” Ethics/Rules of
Professional Conduct, N.C. State Bar (last visited July 26, 2021),
https://www.ncbar.gov/for-lawyers/ethics/ (saved as ECF opinion attachment).
12
attention of the trial court, . . . the court has the responsibility to investigate further.” United
States v. Tatum, 943 F.2d 370, 379 (4th Cir. 1991).
But here, the district court seriously considered and took the necessary steps to
resolve the ethics and fairness concerns involved. When the court became aware that
Nicholson had a potential conflict of interest in representing Mitchell, it investigated the
matter. It was faced with an unusual situation; the more typical counsel-witness conflict
arises where defense counsel previously represented a government witness. In such a case,
the potential conflict of interest lies in the “dual risks of [the attorney] improperly using
privileged communications from the previous representation or, by protecting those
communications, failing effectively to cross-examine the witness as his present client’s
interest require[s].” United States v. Williams, 81 F.3d 1321, 1325 (4th Cir. 1996) (citing
United States v. Ross, 33 F.3d 1507, 1523 (11th Cir. 1994)).
In this case, however, a witness’s counsel’s office previously represented the
defendant. Therefore, the cross-examination concern evaporates, leaving only the potential
for the improper conveyance of privileged communications. See United States v. Ramon-
Rodriguez, 492 F.3d 930, 944 (8th Cir. 2007) (noting this danger in a similar situation).
Recognizing this, the district court conducted a voir dire interview of Nicholson and
determined that Nicholson “knew nothing about” his office’s earlier representation of
Caldwell. J.A. 1473. We conclude that the court acted well within its discretion and did not
err in allowing Mitchell to testify.
As for decisions about the disqualification of counsel, the district court has broad
discretion and must “exercise its own independent judgment as to whether the proceedings
13
are likely to have the requisite integrity if a particular lawyer is allowed to represent a
party” (or, in this case, a witness). Williams, 81 F.3d at 1324. The district court did not
abuse its discretion.
Most importantly, the district court satisfied itself that no actual conflict jeopardized
the integrity of the proceedings. Further, while the state bar’s advice to Nicholson was not
binding on the district court’s discretion, the court appropriately considered it as supporting
guidance. According to that advice, with the district court’s permission, Nicholson could
ethically represent Mitchell during his testimony and withdraw afterward. Given the broad
discretion conferred on the court and the court’s finding that Nicholson had not been
exposed to any confidential information related to Caldwell, the court acted within its
discretion when it allowed Nicholson to represent Mitchell for purposes of his testimony.
See United States v. Medina, 161 F.3d 867, 870 (5th Cir. 1998) (holding that the district
court did not abuse its discretion in allowing a public defender to continue representing her
client after discovering an imputed conflict because she “never faced an actual conflict of
interest”); LaSalle Nat’l Bank v. Cnty. of Lake, 703 F.2d 252, 257 (7th Cir. 1983) (“If the
attorney can clearly and persuasively show that he was not privy to the confidences and
secrets of the client, a court will not be held to have abused its discretion in concluding that
disqualification is unnecessary[.]”).
C.
Caldwell raises additional challenges to the district court’s evidentiary rulings,
which we also review for abuse of discretion. United States v. Cloud, 680 F.3d 396, 401
(4th Cir. 2012). “A court has abused its discretion if its decision is guided by erroneous
14
legal principles or rests upon a clearly erroneous factual finding.” United States v. Johnson,
617 F.3d 286, 292 (4th Cir. 2010) (internal quotation marks omitted).
Evidentiary rulings are also “subject to harmless error review.” United States v.
Cone, 714 F.3d 197, 219 (4th Cir. 2013). “[A]n error is harmless if it’s ‘highly probable
that it did not affect the judgment.’” United States v. Burfoot, 899 F.3d 326, 340 (4th Cir.
2018) (alterations omitted) (quoting United States v. Nyman, 649 F.2d 208, 212 (4th Cir.
1980)). “The decisive factors to consider are ‘the closeness of the case, the centrality of the
issue affected by the error, and the steps taken to mitigate the effects of the error.’” Id. at
340–41 (quoting Nyman, 649 F.2d at 212). We conclude that any errors related to the
challenged evidentiary decisions were harmless.
1.
In presenting its case, the defense entered into evidence a photograph of Caldwell
that was purportedly taken a few hours before the robbery on December 9, 2016. The
purpose was to show what Caldwell looked like and what he was wearing prior to the
robbery.
During cross-examination, the government questioned Caldwell about several
alleged discrepancies related to the photograph in order to demonstrate that it had not, in
fact, been taken the day of the robbery. First, the government asked Caldwell about the
house in the background of the photograph. Caldwell admitted that he no longer lived at
that address on December 9, though he explained that he had stopped by the pictured old
house to collect items to bring to his new house. Second, the government inquired why
15
Caldwell looked “40 pounds heavier” in another photograph that was indisputably taken
on December 9 after the robbery. J.A. 1733.
At issue here is a third line of questioning regarding the photograph. The
government pointed out that Caldwell and another person in the photograph were wearing
short-sleeved shirts and prompted Caldwell to verify that the photograph was taken on
December 9. Caldwell confirmed, adding that “[i]t was warm that day” and that “the sun
was out” when the photo was taken around 3:00 P.M. J.A. 1731–32. The government then
asked, “Would it surprise you to know the high temperature was 44 degrees on that day at
2:52 p.m.?” J.A. 1732. After the court overruled Caldwell’s objection to the question,
Caldwell responded that it was indeed a surprise to hear that and that it “[d]idn’t seem like
it because [he] had on short sleeves.” Id.On appeal, Caldwell argues that the court erred when it “allowed the prosecutor to
offer evidence of weather conditions through incompetent evidence.” Opening Br. at 28–
29. 10 As he cites no legal authorities for this argument, “we would be well within our
discretion and authority to find this argument forfeited in its entirety.” Burgess v.
Goldstein, 997 F.3d 541, 555 n.6 (4th Cir. 2021) (citing Li v. Gonzales, 405 F.3d 171, 175
10
Caldwell also argues that “[t]here was no basis for the court’s insinuations nor
accusations” regarding whether the exhibit had been changed since the previous trial.
Opening Br. at 29. Specifically, outside the presence of the jury, the district court asked
Caldwell whether the photograph had been altered because, during the first trial, the court
had noticed green foliage and grass in the background of the photograph—which now
appeared to have been cropped out. As the jury did not hear these comments, Caldwell’s
argument that he was prejudiced when the jury heard them is without merit.
16
n.4 (4th Cir. 2005); Fed. R. App. P. 28(a)(8)(A)). In any event, we conclude that even if
Caldwell is correct and the court erred in allowing the question, any error was harmless.
First, the government’s other questions—noting that the photograph was taken in
front of a house that Caldwell no longer lived in on December 9, and that he appeared
significantly heavier in another photograph taken later that day—were sufficient to create
doubt that the defense’s photograph was taken on December 9. And a Charlotte-based jury
may well have found it suspicious that the individuals in the photograph were wearing short
sleeves in North Carolina in mid-December, even without hearing the details of the weather
on that date. Thus, even if the court had not permitted the challenged question, the jury
would have had ample reason to doubt the dating of the photograph.
More significantly, even if the government had asked no questions about the
photograph, it had limited value to Caldwell’s defense. At best, the photograph showed
what Caldwell looked like earlier in the day before he was allegedly carjacked and beaten
repeatedly with a gun. But the government did not dispute that Caldwell was uninjured
prior to the robbery. The parties’ disagreement centered on the extent and cause of his
injuries from the time of the robbery until his arrest. A photograph taken before the robbery
could shed no light on that issue. Accordingly, we conclude that even if it was error for the
district court to allow the challenged question, that error was harmless.
2.
Prior to his second trial, Caldwell filed a motion for disclosure of the juvenile
records of two of the government’s witnesses, Mitchell and Cole. Juvenile records are
strictly protected under state law, which provides that “[a]ll juvenile records shall be
17
withheld from public inspection and . . . may be examined only by order of the court.” N.C.
Gen. Stat. § 7B-3000(b) (2019). However, a few specified individuals, including the
juvenile and his attorney, may access the records without a court order. Id. Accordingly,
the government asked the witnesses’ attorneys for the records.
Counsel for each witness provided a juvenile delinquency worksheet, which is a
standardized form in North Carolina. See Worksheet Delinquency History Level, N.C. Jud.
Branch (Dec. 2019), https://www.nccourts.gov/assets/documents/forms/j469.pdf (saved as
ECF opinion attachment); see also, e.g., Matter of J.B., 809 S.E.2d 353, 357 n.2 (N.C. Ct.
App. 2018) (noting that “the delinquency history worksheet . . . tabulates the juvenile’s
prior history points” and relying on it for the juvenile’s delinquency history). It appears
that Cole’s counsel sent a worksheet that had been prepared for state-court purposes a few
months before the robbery and that the prosecution and defense in that case stipulated to
the validity of Cole’s juvenile criminal history as captured in the worksheet. By contrast,
Mitchell’s counsel completed a worksheet himself for purposes of complying with the
government’s request in this case.
Caldwell’s counsel raised concerns about the accuracy of the worksheets and about
the propriety of an attorney filling out such a worksheet in lieu of providing actual records.
In particular, defense counsel noted that Mitchell’s counsel must have had access to certain
undisclosed records in order to complete the worksheet. Accordingly, Caldwell asked the
court to order the witnesses to request copies of their juvenile records and provide them to
Caldwell.
18
The court declined to do so, reasoning that Caldwell would be able to impeach the
witnesses using the worksheets. Indeed, defense counsel questioned Cole and Mitchell
about their criminal records and referred to their juvenile adjudications during closing
arguments. 11 Nevertheless, Caldwell appeals the district court’s denial of his request for an
order requiring Cole and Mitchell to obtain their juvenile records and provide them to
Caldwell for his use in impeaching their credibility.
Caldwell does not explain why he was entitled to such an order—a questionable
assertion in light of Federal Rule of Evidence 609(d)’s presumption against the
admissibility of evidence of juvenile adjudications and our deferential abuse-of-discretion
standard of review. See United States v. Mangual-Corchado, 139 F.3d 34, 43 n.23 (1st Cir.
1998). And even if the district court did err, Caldwell has not articulated why such an order
would have made any difference. While he asserts general concerns about the worksheets’
accuracy, he was indisputably provided with the relevant details of at least some of the
witnesses’ juvenile adjudications and was able to use them in his defense. Further, he was
able to otherwise impeach the credibility of Cole and Mitchell, including by noting
inconsistencies in their stories.
Because Caldwell has not articulated any reason why the district court’s decision
“affect[ed] the judgment,” we conclude that, even if the district court erred, such error was
harmless. Burfoot, 899 F.3d at 340; see United States v. Kelly, 510 F.3d 433, 439 (4th Cir.
11
Accordingly, Caldwell’s assertions on appeal that the district court did not allow
him to impeach Cole and Mitchell with their juvenile records are without merit.
19
2007) (holding that even if the district court erred in excluding evidence of a witness’s
prior conviction, that error was harmless where “the defense thoroughly attacked [the
witness]’s credibility on a variety of other grounds,” such as by pointing out inconsistencies
in the witness’s testimony); United States v. Baxter, 54 F.3d 774, at *6 (4th Cir. 1995) (per
curiam) (unpublished table decision) (finding an abuse of discretion where the court
refused to permit questions related to the key government witness’s juvenile adjudication
but nevertheless concluding the error was harmless because the witness’s “credibility was
attacked on the stand despite the exclusion of the juvenile adjudication evidence” and there
was otherwise “overwhelming evidence of [the defendant’s] guilt”).
D.
Caldwell next argues that the district court erred when it ordered him to disclose his
private investigator’s notes, which were protected as work product. See United States v.
Nobles, 422 U.S. 225, 238–39 (1975) (holding that the work-product privilege protects an
attorney’s investigator’s notes compiled in preparation for trial). “We review evidentiary
rulings, including rulings on privilege, for abuse of discretion, factual findings as to
whether a privilege applies for clear error, and the application of legal principles de novo.”
United States v. Hamilton, 701 F.3d 404, 407 (4th Cir. 2012) (citation omitted).
Caldwell called his private investigator, Royetta Sieminski, as a witness to impeach
Mitchell’s testimony regarding a conversation that had occurred between Sieminski and
Mitchell. Caldwell alleges that the district court erroneously required him to disclose the
notes Sieminski took related to that conversation. Yet the record makes clear that the court
imposed no such requirement.
20
The government informed the district court that it had not “received any tangible
documents” from Sieminski. J.A. 1482. In response, defense counsel invoked the work-
product privilege to protect Sieminski’s notes. After reviewing the notes in camera, the
court asked for the parties’ views. During the ensuing discussion—and before the court
had made any ruling as to the claim of privilege—defense counsel agreed to send the notes
to the government. “[W]hen an attorney freely and voluntarily discloses the contents of
otherwise protected work product to someone with interests adverse to his or those of the
client, . . . he may be deemed to have waived work product protection.” In re Doe, 662
F.2d 1073, 1081 (4th Cir. 1981). Having dropped the argument for work-product privilege
before the district court, and having affirmatively agreed to voluntarily disclose the notes,
Caldwell is not now entitled to pursue such privilege here. Accordingly, we hold that
Caldwell waived his claim of work-product privilege. 12
E.
Next, citing Brady v. Maryland, 373 U.S. 83 (1963), Caldwell alleges that the
district court erred when it did not conduct an in camera review before denying his request
for certain Brady material, namely, the names and addresses of two individuals who spoke
to Cole during his police interview. 13 We disagree.
12
Further, even if Caldwell had not waived the privilege by voluntarily disclosing
the notes, he waived protection of the notes “with respect to matters covered in
[Sieminski’s] testimony” by choosing to call her as a witness. Nobles, 422 U.S. at 239.
13
In headings, his statement of issues, and an introductory sentence in his brief,
Caldwell also argues that the district court erred in failing “to conduct an in camera review
before denying his request for production of grand jury transcripts . . . and officers’
21
Brady requires “the disclosure [by the government] of evidence that is ‘both
favorable to the accused and material to guilt or punishment.’” United States v. Abdallah,
911 F.3d 201, 217 (4th Cir. 2018) (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 57
(1987)). “In reviewing the district court’s denial of [Caldwell]’s Brady motion, we review
the district court’s legal conclusions de novo and its factual findings for clear error.” Id.(alterations omitted) (quoting United States v. King, 628 F.3d 693, 702 (4th Cir. 2011)).
Further, where a defendant “‘at least make[s] some plausible showing’” that the
particular information sought exists and that “it would be ‘both material and favorable to
his defense,’” he is “entitled . . . to have the information he has sufficiently identified
submitted to the trial court for in camera inspection and a properly reviewable judicial
determination made whether any portions meet the ‘material’ and ‘favorable’ requirements
for compulsory disclosure.” Love v. Johnson, 57 F.3d 1305, 1313 (4th Cir. 1995) (quoting
Ritchie, 480 U.S. at 58 n.15). But “[m]ere speculation that the information may be helpful
is insufficient to justify an in camera review.” United States v. Savage, 885 F.3d 212, 221
(4th Cir. 2018) (quoting United States v. Gilchrist, 119 F. App’x 485, 491 (4th Cir.) (per
curiam), partial reh’g granted on other grounds, 137 F. App’x 520 (4th Cir. 2005) (per
curiam)).
Caldwell sought the names and contact information of a man and a woman who
each, separately, entered the interrogation room during breaks in officers’ interrogations of
investigative notes.” Opening Br. at 45. As Caldwell has entirely failed to develop these
arguments, he has waived them. See Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316
(4th Cir. 2017).
22
Cole. Caldwell claims that these individuals pressured Cole to implicate Caldwell and fed
him information about Caldwell. At the time of the interview, Cole denied knowing
Caldwell. But, roughly six months later, he changed his tune and implicated Caldwell. The
government revealed that the individuals were Cole’s mother and her boyfriend, but
declined to provide their contact information.
Before the district court, Caldwell argued that he needed the contact information
because he did not know how Cole’s mother and her boyfriend had information about
Caldwell or “how or when/where law enforcement provided them with the information
allegedly about Caldwell that was used to attempt to induce Cole to cooperate with law
enforcement”; “what other [undisclosed] information these people or law enforcement
ha[d] about Mr. Caldwell”; and “what kind of pressure was put [on] Cole to change his
story” from not knowing Caldwell to naming Caldwell as the ringleader. J.A. 878–79.
Accordingly, in his view, the pair had “become material witnesses in this case” and were
“relevant in establishing the tactics used by the government in the investigation of this
matter”—those tactics being that the police fed information about Caldwell to Cole’s
mother and her boyfriend for use in pressuring Cole to implicate Caldwell. J.A. 879. The
district court denied the motion because “the government ha[d] advised that it [did] not
plan on calling those individuals in its case-in-chief.” 14 J.A. 897.
14
We note that, if the government had planned to call Cole’s mother or her
boyfriend as a witness, their contact information would have been “nondiscoverable”
pursuant to the district court’s discovery order, at least “absent a special showing of need.”
Standard Criminal Discovery Order at 2, District Court Dkt. (May 5, 2017) (first quoting
Fed. R. Crim. P. 16 advisory committee’s note to 1975 enactment); see United States v.
23
Caldwell has not made a plausible showing that the contact information he sought
was material and favorable to his defense, as required to entitle him to in camera inspection
of that information. Rather, he can only speculate as to what information interviews with
Cole’s mother and her boyfriend would have produced. For example, he argues that the
pair would have been able to speak to the police’s tactics in coaxing Cole to implicate
Caldwell. But, for all we know from the record, Cole’s mother and her boyfriend could
have had independent knowledge of Caldwell—perhaps obtained from Cole himself in
earlier, private conversations—that they relied on in speaking to him.
In other words, the fact that the two had knowledge of Caldwell does not necessarily
mean they obtained that information from the police in a concerted effort to pressure Cole.
Further, as noted, Cole did not implicate Caldwell until six months later. Accordingly,
Caldwell’s argument that the contact information was relevant because Cole’s mother and
her boyfriend would be able to shed light on police interview tactics “is pure speculation
lacking any specificity, and is insufficient to support a finding of materiality under Brady
or to require an in camera review.” 15 Savage, 885 F.3d at 222.
Jones, 469 F. App’x 175, 180 (4th Cir. 2012) (per curiam) (unpublished but orally argued)
(“We have long held that defendants are ‘not entitled of right, in a non-capital case, to . . .
pretrial disclosure[]’ [of the government’s witness list].” (alterations omitted) (quoting
United States v. Anderson, 481 F.2d 685, 693 (4th Cir. 1973))).
15
We do not understand Caldwell to assert that Cole’s mother and her boyfriend
were police informants, but rather that they could provide information to him about the
police. To the extent he implies that they may have given information to the officers,
however, the government was not required to disclose information about them. See United
States v. Bell, 901 F.3d 455, 466–67 (4th Cir. 2018) (“[W]e have held . . . that the
government is privileged to withhold the identity of an informant when he was a mere
24
Additionally, we note that it is unclear what benefit in camera review would have
had in a case such as this, where the district court could evaluate the value of the requested
material (contact information) without needing to actually review it. Simply put, Caldwell
has not articulated any reason why the specifics of the contact information (e.g., a precise
phone number or address) would alter the district court’s Brady analysis in this case. But,
in any event, Caldwell has failed to make a showing of materiality under either Brady or
the less onerous standard for in camera review. Id. Accordingly, the district court correctly
denied the motion.
F.
At the close of the government’s case, at the close of his own case, and again after
the jury verdict, Caldwell moved for a judgment of acquittal based on insufficiency of the
evidence pursuant to Federal Rule of Criminal Procedure 29. The district court summarily
denied the motions. We affirm.
“We review a challenge to the sufficiency of the evidence de novo, and we must
sustain the verdict if there is substantial evidence, viewed in the light most favorable to the
government, to support it.” United States v. Bran, 776 F.3d 276, 279 (4th Cir. 2015)
(citation omitted). “In undertaking this analysis,” we must bear in mind that “‘the jury, not
tipster[.]” (alterations and internal quotation marks omitted) (quoting United States v.
Gray, 47 F.3d 1359, 1365 (4th Cir. 1995))); United States v. Smith, 780 F.2d 1102, 1107
(4th Cir. 1985) (en banc) (“Dual interests arise from nondisclosure of informers and the
information they possess. First, the public interest is served by nondisclosure because it
encourages persons to come forward with information that can aid effective law
enforcement. Second, the safety and security of the person supplying the information is
best protected by nondisclosure of his identity to those who may cause him harm.”).
25
the reviewing court, weighs the credibility of the evidence and resolves any conflicts in the
evidence presented.’” United States v. Ath, 951 F.3d 179, 185 (4th Cir.) (alterations
omitted) (quoting United States v. Palacios, 677 F.3d 234, 250 (4th Cir. 2012)), cert.
denied, 140 S. Ct. 2790 (2020).
Viewing the evidence in the light most favorable to the government, ample evidence
supported the verdict. Witness testimony supported that Cole and Mitchell entered the
bank, held the tellers at gunpoint, and made off with thousands of dollars in cash. Cole and
Mitchell testified that they did so at Caldwell’s direction and using guns he provided, and
that he drove them from the bank after the robbery. An officer who tracked the stolen cash
testified to having seen three individuals fleeing the getaway car on foot—not, as Caldwell
claimed, two individuals forcing a third to run with them by pushing and pulling on him.
Several officers testified to the fact that the police presence was quite obvious, and yet
Caldwell did not emerge seeking their help for a carjacking. Rather, an officer walked right
past Caldwell, who was well hidden in the brush—on top of a bag containing nearly all of
the stolen cash. Caldwell claimed that he had passed out from head injuries and only awoke
when the police dog bit him, which could explain why he did not seek police assistance.
Yet, other than his testimony, there is no evidence to support anything like the extensive
lacerations to his head that he described as a result of the alleged pistol-whipping. Instead,
after his arrest, he had only injuries to his arm from being bitten by the police dog as well
as some bruising to his left eye and a minor abrasion on his head. Finally, the vehicle he
was driving had a falsified temporary tag mounted on its rear in lieu of an actual license
plate, which was instead discovered on the back seat alongside a revolver. A second
26
revolver was located in the trunk. Considering all of this evidence, the jury was well within
its rights to return a guilty verdict on all counts.
Caldwell argues on appeal that there was no evidence to tie him to Cole and Mitchell
as a coconspirator, “other than their words and testimony at trial,” or to connect him with
the guns. Opening Br. at 56. Yet the jury was entitled to credit Cole and Mitchell’s
testimony that Caldwell planned the robbery and provided the guns, and to disbelieve
Caldwell’s competing testimony. See Kelly, 510 F.3d at 440 (“[W]e do not weigh the
evidence or assess the credibility of witnesses, but assume that the jury resolved any
discrepancies in favor of the government.”). Caldwell also argues that there is no evidence
that the guns found in his car were used in the robbery. But the jury was entitled to infer
that they were: Cole and Mitchell indisputably possessed two guns during the robbery; they
testified that Caldwell provided those guns; and two guns were located in the getaway
vehicle immediately after the robbery alongside dark clothing that Cole and Mitchell wore
in carrying out the robbery. Cf. United States v. Branch, 537 F.3d 328, 342–43 (4th Cir.
2008) (affirming the denial of a motion for judgment of acquittal on a charge of illegal
possession of a firearm by a felon where the defendant was driving a vehicle that contained
a concealed firearm, even though the defendant did not own the vehicle, given other
evidence suggesting he was aware of the vehicle’s contents).
Finally, Caldwell points to the lack of DNA or fingerprint evidence tying him to the
guns. But the jury could easily have concluded that Caldwell must have wiped down the
guns before providing them to Cole and Mitchell; that he avoided touching them directly,
such as by handling them with gloves; or that his DNA and fingerprints simply did not
27
transfer to the gun’s surfaces when he handled them, which evidence introduced before the
jury indicated was possible. Further, the lack of Caldwell’s DNA on the firearms also
undermined Caldwell’s version of events, in which Cole and Mitchell beat him bloody with
the guns.
Accordingly, we affirm the district court’s denial of Caldwell’s Rule 29 motions.
G.
Caldwell also raises two arguments for the first time on appeal, for which plain-
error review under Federal Rule of Criminal Procedure 52(b) applies. Greer v. United
States, 141 S. Ct. 2090, 2096 (2021) (citing United States v. Olano, 507 U.S. 725, 735
(1993)). To succeed in obtaining plain-error relief, a defendant must show (1) an error, (2)
that is plain, (3) and that affects substantial rights, “which generally means that there must
be ‘a reasonable probability that, but for the error, the outcome of the proceeding would
have been different.’” Id. (quoting Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904–
05 (2018)). If the defendant satisfies these “three threshold requirements,” we “may grant
relief if [we] conclude[] that the error had a serious effect on ‘the fairness, integrity or
public reputation of judicial proceedings.’” Id. at 2096–97 (quoting Rosales-Mireles, 138
S. Ct. at 1904). We sometimes refer to this final question as the fourth prong of the plain-
error test. E.g., United States v. Simmons, 999 F.3d 199, 227 (4th Cir. 2021).
1.
Caldwell first points to the testimony of Diane Popichak, the government’s rebuttal
witness and a health services administrator at the jail where Caldwell was brought after his
arrest. She testified as a records keeper regarding the medical records from the jail; the
28
government did not seek to qualify her as a medical expert. Caldwell argues that her
testimony crossed the line into expert testimony and that this constituted plain error.
However, he does not point to specific testimony that he alleges constitutes error, and he
makes only cursory arguments with regard to the third and fourth prongs of the plain-error
analysis. We could, therefore, deem this argument waived for failure to develop it. See
Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017).
Regardless, even if Caldwell is correct that there was an error that was plain, he
would not be able to demonstrate that it affected his substantial rights—that is, that there
exists “a reasonable probability that, but for the error, the outcome of the proceeding would
have been different.” Greer, 141 S. Ct. at 2096.
Only a few items of Popichak’s testimony are possibly relevant to this challenge:
defining the word “abrasion” as a superficial injury; explaining that a “[t]ender scalp with
no clear focality” would mean “[t]hat there is no center point, origination point or contact
point for the wound”; and noting that there was nothing in the medical records consistent
with treatment “for being beaten with two heavy metal objects.” J.A. 1880, 1895, 1897.
But there is no reason to suppose that the jury would have returned a different verdict had
these snippets of testimony not been allowed. The records noted a one-centimeter abrasion
and a swollen left eye, but no other significant head injuries. Popichak testified that inmates
need to be declared fit for confinement before entering the jail, meaning that an inmate
presenting with significant injuries would need to be cleared by the hospital before the jail
would accept him—but no such preclearance was required in this case, suggesting the nurse
29
on duty did not find his injuries substantial. And the jury was able to view an image of
Caldwell from the night of his arrest and gauge for itself the severity of his injuries.
We conclude that, with or without Popichak’s explanations, the evidence was not
sufficient to support Caldwell’s account of a severe beating to his face and head with a
firearm that left him with blood “running down [his] face,” gave him “all kind[s] of gashes”
“all over [his] head,” “[d]id a lot of damage,” and caused him to pass out. J.A. 1684, 1696,
1720, 1734. While the jury need not have accepted Caldwell’s testimony on these points
in order to acquit him (if they believed, for example, that Cole and Mitchell carjacked him
with threats but that his claims of a beating were an exaggeration), the jury was certainly
entitled to consider the inconsistencies between his testimony and the other evidence in
weighing the validity of his testimony and returning a guilty verdict. Those inconsistencies
were apparent without Popichak’s challenged testimony. And, as noted above, significant
additional evidence pointed to his guilt. Caldwell thus cannot meet the heavy burden of
establishing entitlement to relief for plain error.
2.
Finally, for the first time on appeal, Caldwell argues that he is entitled to relief under
the Supreme Court’s decisions in United States v. Davis, 139 S. Ct. 2319 (2019), and Rehaif
v. United States, 139 S. Ct. 2191 (2019). Both arguments are foreclosed by binding
precedent. 16
16
Because the Supreme Court issued its opinions in Davis and Rehaif after Caldwell
filed his Opening Brief, we will exercise our discretion to excuse the fact that he did not
raise arguments related to those opinions until his Reply Brief. See United States v.
30
a.
The jury found Caldwell guilty of Count III, possession of a firearm in furtherance
of a crime of violence, as prohibited by 18 U.S.C. § 924(c)(1)(A). The underlying crime of
violence was specified in the indictment and the jury instructions as Count II, aiding and
abetting bank robbery. 18 U.S.C. §§ 2, 2113(a), (d).
Section 924(c)(3) defines a “crime of violence” as a felony that “has as an element
the use, attempted use, or threatened use of physical force against the person or property
of another” (the “force clause”), or “that by its nature, involves a substantial risk that
physical force against the person or property of another may be used in the course of
committing the offense” (the “residual clause”). Id. § 924(c)(3)(A), (B). In Davis, the
Supreme Court struck down the residual clause as unconstitutionally vague. Davis, 139 S.
Ct. at 2324. However, convictions under the force clause remain valid. E.g., United States
v. Mathis, 932 F.3d 242, 263–64 (4th Cir. 2019).
This Court has held that bank robbery under either § 2113(a) or (d) is a crime of
violence under § 924(c)(3)’s force clause. United States v. McNeal, 818 F.3d 141, 157 (4th
Cir. 2016). Further, we have held that “aiding and abetting a crime of violence is also
categorically a crime of violence.” United States v. Ali, 991 F.3d 561, 574 (4th Cir. 2021)
(citing 18 U.S.C. § 2 and United States v. Ashley, 606 F.3d 135, 143 (4th Cir. 2010), and
Venable, 943 F.3d 187, 192 (4th Cir. 2019) (noting our discretion to excuse a party’s waiver
of an argument). Any other arguments raised for the first time in his Reply Brief, however,
we deem waived. See Grayson O Co., 856 F.3d at 316 (“A party waives an argument by
failing to present it in its opening brief[.]”)
31
collecting cases); see also Johnson v. United States, 774 F. App’x 334, 335 (8th Cir. 2019)
(per curiam) (applying the same reasoning to a § 2113 aiding-and-abetting conviction).
Accordingly, Caldwell’s conviction for aiding and abetting § 2113 bank robbery can still
serve as a predicate for his § 924(c) conviction, even after Davis.
b.
Caldwell was also convicted, in Count IV, of possessing a firearm as a convicted
felon. 18 U.S.C. § 922(g)(1). His indictment did not indicate, and the jury was not
instructed, that this charge required the government to prove that he knew he was a felon
at the time of the firearm possession. But in Rehaif, the Supreme Court concluded that to
obtain a § 922(g) conviction, the government “must show that the defendant knew he
possessed a firearm and also that he knew he had the relevant [felon] status when he
possessed it.” Rehaif, 139 S. Ct. at 2194 (emphasis added).
Still, plain-error review applies to unpreserved Rehaif errors such as this one. Greer,
141 S. Ct. at 2096. Caldwell can satisfy the first two prongs: there was an error, and it is
plain. Id. at 2097. But he cannot show that the Rehaif error affected his substantial rights.
Id. As the Supreme Court has noted, “[i]n a felon-in-possession case where the defendant
was in fact a felon when he possessed firearms, the defendant faces an uphill climb in trying
to satisfy the substantial-rights prong of the plain-error test based on an argument that he
did not know he was a felon. The reason is simple: If a person is a felon, he ordinarily
knows he is a felon.” Id.
Certainly, the mere undisputed fact that Caldwell was a felon at the time of the
robbery is not dispositive. “[T]here may be cases in which a defendant who is a felon can
32
make an adequate showing on appeal that he would have presented evidence in the district
court that he did not in fact know he was a felon when he possessed firearms.” Id. This
could occur, for example, where a defendant was previously convicted of “a crime
punishable by imprisonment for a term exceeding one year,” but was sentenced to a term
less than a year or to probation. 18 U.S.C. § 922(g)(1) (emphasis added). Such a defendant
may not have been aware of what punishments were permitted for his prior conviction, and
thus that he was considered a felon under § 922(g)(1). See Rehaif, 139 S. Ct. at 2198; Greer,
141 S. Ct. at 2103 (Sotomayor, J., concurring in part and dissenting in part) (noting this
and other possible reasons a defendant might be able to show he was not aware of his felon
status). “But if a defendant does not make such an argument or representation on appeal,
the appellate court will have no reason to believe that the defendant would have presented
such evidence to a jury, and thus no basis to conclude that there is a ‘reasonable probability’
that the outcome would have been different absent the Rehaif error.” Greer, 141 S. Ct. at
2097 (majority opinion). Caldwell has made no such argument here.
Moreover, the same factors that the Supreme Court found relevant in dismissing the
Rehaif challenge in Greer are present here. Before the date of the robbery, Caldwell “had
been convicted of multiple felonies.” Id. He has never disputed the validity of these felony
convictions, and indeed, he stipulated at trial to having had such a conviction. Id. at 2098.
We also note that Caldwell had, on several occasions, served sentences longer than a
year—including two stints of more than five years each in federal prison—making it
virtually impossible to believe he did not know he had been convicted of crimes punishable
33
by such sentences. Caldwell therefore has not demonstrated plain error with regard to his
§ 922(g) conviction.
III.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
34