United States v. Mikeem Daniel , 887 F.3d 350 ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-4534
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Mikeem Daniel
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - Cape Girardeau
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Submitted: December 15, 2017
Filed: April 4, 2018
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Before SMITH, Chief Judge, KELLY and ERICKSON, Circuit Judges.
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SMITH, Chief Judge.
Mikeem Daniel appeals after a jury convicted him of (1) aiding and abetting
the interference with commerce by robbery, and (2) aiding and abetting the
possession of a firearm in furtherance of a crime of violence. He challenges the
sufficiency of the evidence supporting the convictions. Daniel also argues that the
district court1 erred in denying a motion to suppress and in its jury instructions. We
affirm.
I. Background
“We recite the facts in the light most favorable to the jury’s verdict.” United
States v. Payne–Owens, 845 F.3d 868, 870 n.2 (8th Cir. 2017) (quoting United States
v. Stevens, 439 F.3d 983, 986 (8th Cir. 2006)). After St. Joe’s General Store in
Perryville, Missouri, had closed, clerk Angela Corse worked to prepare the store for
the next day. The back door was unlocked and propped opened for cleaning. As Corse
faced away from that door, someone entered the store behind her, wrapped his arm
around her, and pressed a gun to her back. The unknown male asked for money and
pushed Corse toward the cash registers, where he made her pull cash from the drawer.
Corse never saw the man’s face but believed he was African American based on the
appearance of his hand when he took the cash. The man then grabbed Corse’s wallet
off the counter and pushed Corse to the rear of the store. He shoved her aside and
pointed a gun at her before running out the back door.
As the man fled from the store, Corse saw a white Suburban driving slowly on
the road parallel to the back of the store. The vehicle’s brake lights illuminated, and
the man went towards the Suburban. Once Corse realized where he was going, she
shut and locked the door and immediately called 911. Corse reported that she had
been robbed at gunpoint and that the suspect had left in a white Suburban driven by
someone else. She also described the individual’s clothing, race, and the color of the
gun she had seen pointed at her—silver. The dispatcher immediately relayed this
information to Perryville and Perry County law enforcement.
1
The Honorable Stephen N. Limbaugh Jr., United States District Judge for the
Eastern District of Missouri.
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Perry County Sheriff’s Deputy Rusty Farrar responded to the call reporting an
armed robbery at St. Joe’s General Store. Farrar heard the description of a white
Suburban and immediately headed towards the store. After only a couple of blocks,
he noticed a white Suburban driving in the opposite direction in the oncoming lane.
Farrar activated his lights and sirens and pursued. The Suburban pulled over, and
Farrar called for backup. Two officers soon arrived. Peering into the vehicle, the
officers observed a woman’s wallet behind the driver’s seat. The officers identified
Daniel as the driver of the Suburban. Darion Gipson was the passenger. Daniel
initially argued with Farrar over the traffic stop, but he ultimately consented to a
search of the vehicle.
The search revealed that the women’s wallet behind the driver’s seat was
Corse’s. Near the wallet, the officers found a hoodie similar to the one worn by the
person who attacked Corse. Gipson had on no jacket or sweatshirt. The searching
officer found a loaded black 9mm pistol in the space underneath the front seat
cupholder. Gipson had $349 in cash in his pocket—the precise amount a later audit
revealed was taken from the store’s cash register. The officers never found a silver
gun.
Daniel went to trial, and the jury convicted him of aiding and abetting the
interference with commerce by robbery, in violation of 18 U.S.C. §§ 2 and 1951, and
aiding and abetting the possession of a firearm in furtherance of a crime of violence,
in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A)(ii). On appeal, Daniel argues that the
district court erroneously denied a pretrial motion to suppress evidence obtained in
the traffic stop. He also challenges the sufficiency of the evidence as to both
convictions. Finally, Daniel contends that the jury instructions were erroneous.
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II. Discussion
A. Motion to Suppress
We first address the district court’s denial of the motion to suppress. “We
review the denial of a motion to suppress de novo but the underlying factual
determinations for clear error, giving due weight to inferences drawn by law
enforcement officials.” United States v. Mosley, 878 F.3d 246, 251 (8th Cir. 2017)
(quoting United States v. Hurd, 785 F.3d 311, 314 (8th Cir. 2015)).
Daniel argues that Farrar did not have reasonable suspicion to stop the
suburban. “An officer may conduct a Fourth Amendment stop to investigate a crime
only if the officer has a reasonable suspicion that that person had committed or was
committing a crime.” United States v. Juvenile TK, 134 F.3d 899, 902 (8th Cir. 1998)
(citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). “[T]he likelihood of criminal activity
need not rise to the level required for probable cause, and it falls considerably short
of satisfying a preponderance of the evidence standard.” United States v. Arvizu, 534
U.S. 266, 274 (2002) (citing United States v. Sokolow, 490 U.S. 1, 7 (1989)). In
justifying the stop, “the police officer must be able to point to specific and articulable
facts which, taken together with rational inferences from those facts, reasonably
warrant that intrusion.” Terry, 392 U.S. at 21. “[T]he facts [are] judged against an
objective standard: would the facts available to the officer at the moment of the
seizure or the search warrant a man of reasonable caution in the belief that the action
taken was appropriate?” Id. at 21–22 (quotations omitted). “[D]ue weight must be
given, not to [the officer’s] inchoate and unparticularized suspicion or ‘hunch,’ but
to the specific reasonable inferences which he is entitled to draw from the facts in
light of his experience.” Id. at 27 (citation omitted). When a traffic stop is based on
a radio dispatch, factors such as “the temporal and geographic proximity of the car
to the scene of the crime, [a] matching description of the vehicle, and the time of the
stop” are highly relevant to a finding of a reasonable suspicion. Juvenile TK, 134 F.3d
at 903.
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The district court found the following facts in denying Daniel’s motion to
suppress. Farrar heard dispatch report an armed robbery at the St. Joe’s General Store
and that the suspect was in a white Suburban. Farrar immediately started driving
towards the store, then saw a white Suburban driving in the oncoming lane on the
highway. He passed it, made a U-Turn, and stopped the Suburban. The stop occurred
within minutes of the dispatch. Farrar admitted that the vehicle had committed no
traffic violation; rather, the stop “was just based on the radio dispatch.” Transcript of
Hearing on Motion to Suppress at 87, United States v. Daniel, No. 1:16-cr-00006-
SNLJ-1 (E.D. Mo. Mar. 24, 2016), ECF No. 54. As the district court noted, all this
occurred late at night when there was very little traffic on the roadway. Based on the
evidence presented at the suppression hearing, these factual findings are not clearly
erroneous. Mosley, 878 F.3d at 251.
These facts support reasonable suspicion. Considering “the temporal and
geographic proximity of the car to the scene of the crime, the matching description
of the vehicle, and the time of the stop,” Juvenile TK, 134 F.3d at 903, we hold that
an officer in Farrar’s position would have reasonable suspicion to justify stopping the
Suburban. See id. at 901–04 (holding reasonable suspicion existed for a Terry stop
two blocks away from the reported crime and five to seven minutes after dispatch
identified a gray vehicle engaging in criminal activity in the early morning hours);
United States v. Farnell, 701 F.3d 256, 258–59 (8th Cir. 2012) (holding reasonable
suspicion existed for a Terry stop an hour after dispatch described robbery suspect’s
vehicle as a white van and the suspect as a heavy white male wearing certain clothing,
and an officer observed a white van whose driver was a heavy white male wearing
different clothing, and who held up his hand to conceal his face).
On appeal, Daniel points out that when cross-examined, Farrar admitted that
as he made the U-turn, he heard on the police radio traffic “of the vehicle possibly
headed towards the square in Perryville”—the opposite direction from the way the
Suburban was heading. Transcript of Hearing on Motion to Suppress at 89. Farrar
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stopped the Suburban anyway. Our conclusion is unchanged by the radio report’s
vehicle direction information. An officer exercising “reasonable caution” would
believe it appropriate to conduct an investigatory stop of the Suburban. See Terry,
392 U.S. at 21–22.
Nor does Farrar’s admission that he followed a “hunch” affect our conclusion.
We note from the transcript that Farrar merely affirmed the word “hunch” in response
to a leading question on cross examination: “But you followed up on a hunch and
stopped the car; is that correct?” Transcript of Hearing on Motion to Suppress at 90.
Despite Farrar’s “yes,” we conclude that, based on the facts he knew at the time and
expressed at the hearing, and the reasonable inferences from those facts, Farrar had
more than an “unparticularized suspicion or hunch”—he had reasonable suspicion
that criminal activity was afoot. Terry, 392 U.S. at 27. The district court’s denial of
the motion to suppress is affirmed.
B. Sufficiency of the Evidence
Daniel next argues that the evidence was insufficient to sustain either of his
convictions. “We review de novo whether the evidence presented at trial was
sufficient to prove that the accused was guilty beyond a reasonable doubt.” United
States v. Moe, 536 F.3d 825, 832 (8th Cir. 2008) (citation omitted). “[W]e view all
the evidence in the light most favorable to the verdict” and “will not re-weigh the
evidence and will resolve all credibility issues in favor of the verdict.” Id. (citation
omitted). “[W]e will reverse only if no reasonable jury could have found the accused
guilty beyond a reasonable doubt.” Id. at 833 (citation omitted).
1. Aiding and Abetting Firearm Possession
For a person to be convicted as an aider and abettor he must have “facilitated
any part—even though not every part—of a criminal venture.” Rosemond v. United
States, 134 S. Ct. 1240, 1246 (2014). An individual can aid and abet a violation of
§ 924(c) “by facilitating either the [underlying crime of violence] or the firearm use
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(or of course both).” Id. at 1247. In this case, “[Daniel] may be convicted of abetting
a § 924(c) violation only if his intent reache[d] beyond a simple [crime of violence],
to an armed one.” Id. at 1248 (emphasis added). The intent element is satisfied by
proof of “full knowledge of the circumstances constituting the charged offense.” Id.
at 1248–49. “An active participant in a [crime of violence] has the intent needed to
aid and abet a § 924(c) violation when he knows that one of his confederates will
carry a gun. In such a case, the accomplice has decided to join in the criminal
venture,” fully aware the crime will be “an armed one.” Id. at 1249. The “defendant’s
knowledge of a firearm must be advance knowledge—or otherwise said, knowledge
that enables him to make the relevant legal (and indeed, moral) choice.” Id. Thus, “an
unarmed accomplice cannot aid and abet a § 924(c) violation unless he has
foreknowledge that his confederate will commit the offense with a firearm.” Id.
(quotation omitted).
Daniel argues that there is insufficient proof that he had prior knowledge that
Gipson would carry, use, or possess a gun and that we must reverse his conviction on
this count. We disagree.
Trial evidence established that Daniel drove the Suburban in which Gipson fled
from the robbery scene. Given the lateness of the hour (near midnight), the
Suburban’s slow travel, its proximity to the store, and Gipson’s running to it, a
reasonable jury could infer that Daniel intended to be Gipson’s getaway driver all
along. Of course, this latter inference does not answer the necessary question:
whether Daniel knew Gipson would not only conduct a robbery, but an armed one.
See id.
The robbery was armed. The clerk in the store reported having a handgun
placed against her back and recalled seeing a silver tip on the handgun when it was
pointed at her before the robber fled. The gun found in the Suburban was black, not
silver. However, a jury could reasonably infer that the pistol found in the Suburban
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minutes after the robbery was the same one Gipson used during the robbery. Daniel
argues hard that the clerk’s testimony about a silver gun shows that the black gun
found in the Suburban could not have been the gun used during the robbery. He
contends this discrepancy, at the least, creates a reasonable doubt. This argument
could have worked before the jury. On appeal, however, the jury’s verdict receives
the benefit of reasonable inferences that might be drawn in its favor.
At trial, Corse testified she saw a silver gun, but then hedged by stating “[i]t
was just the very tip of the barrel . . . . facing at [her.]” Transcript of Jury Trial at 160,
United States v. Daniel, No. 1:16-cr-00006-SNLJ-1 (E.D. Mo. Sept. 15 & 19, 2016),
ECF No. 129. Though she again answered affirmatively when asked if “[she] got the
jacket correct,” she also acknowledged that “[i]t was dark.” Id. at 161. Corse also
testified that she was very afraid during the entire robbery. The jury could have
rationally inferred that Corse honestly thought the gun was silver, but decided that
she was mistaken due to the excitement of the moment and the available lighting. The
jury viewed a security camera recording of robbery events at the cash register.
Though the video is blurry, it shows Gipson press something against Corse’s back.
Both individuals’ dark clothing makes it difficult to see the details of anything in
Gipson’s hand—silver, black, or otherwise. Corse’s testimony places a gun in
Gipson’s hand aimed directly at her in a threatening manner. The video is
inconclusive as to the gun’s color. The jury heard the testimony and likely believed
that Corse’s recollection of a silver barrel tip was mistaken. Daniel asks us to reweigh
this evidence, but we may not. See Moe, 536 F.3d at 832.
Daniel points out that the black pistol in the Suburban was located underneath
a cupholder containing two cups full of soda. He highlights the improbability of
Gipson’s hurriedly entering the Suburban, removing the full cups and cupholder,
hiding the gun underneath, and replacing the cupholder and cups. Daniel contrasts
this apparently careful behavior with Gipson’s haphazardly tossing Corse’s wallet
into the back seat, and tucking the incriminating $349 in cash in his pocket. All this,
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Daniel says, means the jury necessarily would have had a reasonable doubt that
Daniel had advance knowledge that a gun would be used.
We must view the above evidence in the light most favorable to the guilty
verdict, and we conclude a reasonable jury could have found that the gun Gipson used
was the same gun found in the Suburban afterwards. A jury could reasonably infer
that Gipson stowed the loaded weapon underneath the cupholder, intending to quickly
hide it in a seemingly inaccessible spot, rather than throwing it in the back seat with
the other items. The presence of the gun in the vehicle Daniel drove could also
support the reasonable inference that Daniel knew—in advance—that Gipson would
use a gun.2 There was no evidence that Daniel abandoned Gipson’s criminal endeavor
after Gipson entered the Suburban. A jury can infer advance knowledge “if a
defendant continues to participate in a crime after a gun was displayed or used.”
Rosemond, 124 S. Ct. at 1250 n.9. Although the robbery itself ended before Gipson
returned to the vehicle, the jury can “draw inferences about a defendant’s intent based
on all the facts and circumstances of a crime’s commission.” Id. (emphasis added).
We will reverse Daniel’s conviction based on insufficient evidence “only if no
reasonable jury could have found [Daniel] guilty beyond a reasonable doubt.” Moe,
536 F.3d at 833 (citation omitted). That is not this case. We hold there was sufficient
evidence for a jury to find Daniel guilty of aiding and abetting the possession of a
firearm in furtherance of a crime of violence.
2. Aiding and Abetting Hobbs Act Robbery
Daniel next argues we must overturn his conviction for aiding and abetting
Hobbs Act robbery. The Hobbs Act penalizes anyone who “in any way or degree
2
This conclusion is also strengthened by evidence showing the gun belonged
to one of Daniel’s relatives. Though the jury did not have to do so to convict, it could
have found based on this evidence that Daniel actually furnished the gun for the
crime.
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obstructs, delays, or affects commerce . . . by robbery or extortion or attempts or
conspires so to do.” 18 U.S.C. § 1951(a). The government must “show that a robbery
affected interstate commerce.” United States v. McAdory, 501 F.3d 868, 871 n.5 (8th
Cir. 2007).
Daniel contends specifically that there was insufficient evidence to establish
that the robbery affected commerce as the Hobbs Act requires. He says that because
St. Joe’s General Store was closed when Gipson robbed it, neither its business nor
inventory could have been affected. And Daniel points to evidence that the store’s
operations were not affected, as established by the store manager’s testimony showing
that, after the night of the robbery, business continued as usual.
We have stated that Congress likely “had in mind primarily offenses with a
broad impact on interstate commerce,” but the Hobbs Act’s actual “words in no way
exclude prosecutions for single local robberies, so long as . . . commerce or the
movement of any article or commodity in commerce is obstructed, delayed, or
affected.” United States v. Farmer, 73 F.3d 836, 843 (8th Cir. 1996). If a business
sells products coming from different states and has stores in various states, the Hobbs
Act protects these “businesses that are part of an interstate chain.” Id. (citation
omitted). In Farmer, we affirmed a Hobbs Act conspiracy conviction where the
would-be robbers were thwarted after they entered a convenience store. Id. at 839.
The conspirators planned to rob the store, and the fact that the intended robbery
victim dealt generally in out-of-state goods satisfied the “effect on commerce”
element. See id. at 839, 843 (“Evidence about the business operations of [the
company], whether in Waterloo or Des Moines, is relevant to show the effect on
commerce of an interference with business at the Waterloo store.”); see also United
States v. Vong, 171 F.3d 648, 654 (8th Cir. 1999) (holding there was an impact on
interstate commerce for purposes of the Hobbs Act where the defendant admitted the
indictment’s factual allegations, including that the robbed stores sold jewelry
manufactured out of state and shipped to the stores using interstate transportation).
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The Hobbs Act robbery victim “need not be a large, interstate chain.” United
States v. Dobbs, 449 F.3d 904, 912 (8th Cir. 2006). Rather, “robberies from small
commercial establishments qualify as Hobbs Act violations so long as the commercial
establishments deal in goods that move through interstate commerce.” Id. In Dobbs,
we affirmed a Hobbs Act conviction where trial testimony established “the interstate
nature of the store’s business.” Id. at 907. For example, a beverage supplier testified
that his company’s products were produced out of state, and many of the store’s
customers were from out of state. Id. at 908. The crime thus had “a sufficient nexus
to interstate commerce to qualify as a Hobbs Act violation.” Id. at 912.
At Daniel’s trial, the store manager testified that the store sells gasoline, liquor,
and cigarettes that are all supplied or manufactured outside Missouri. One of the
store’s suppliers testified to the same. This testimony sufficiently establishes the
robbery’s effect on interstate commerce. See id. Daniel’s argument that the store
continued to buy the same products from the same suppliers after the robbery misses
the point. Our cases have not so limited effects on interstate commerce. Causing a
business to close may definitely affect interstate commerce, but the business need not
cease operation for the defendant’s robbery to affect interstate commerce. Daniel also
cites to United States v. Chaplain, where we stated “[w]here a business is forced to
close for a period of time, a court is especially likely to find that the robbery affected
interstate commerce.” 864 F.3d 853, 858 (8th Cir. 2017) (citation omitted). But we
did not hold that the business must be forced to close in order to find an effect on
commerce—the stores’ closures simply reinforced the “effect on commerce” finding,
but was not necessary to it. The “effect on commerce” element can be met because
the company deals in interstate products. Farmer, 73 F.3d at 843. So too, here, the
continuity of the store’s business does not preclude the finding of an effect on
commerce. For better or worse, our precedent gives the Hobbs Act extensive reach.
The St. Joe’s General Store “deal[s] in goods that move through interstate
commerce.” Dobbs, 449 F.3d at 912. Under our binding precedent, this is sufficient
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to establish the requisite nexus to interstate commerce. We affirm Daniel’s conviction
for violating the Hobbs Act.
C. Jury Instructions Nos. 8 and 9
Daniel’s final argument on appeal is that the district court erroneously
instructed the jury. We review jury instructions for an abuse of discretion. United
States v. Thompson, 686 F.3d 575, 579 (8th Cir. 2012). “We will affirm if the entire
charge to the jury, when read as a whole, fairly and adequately contains the law
applicable to the case.” Id. (quotation omitted). But we reverse “when the errors
misled the jury or had a probable effect on the jury’s verdict.” Id. (citation omitted).
“A district court has broad discretion in instructing the jury, and jury instructions do
not need to be technically perfect or even a model of clarity.” United States v.
Garcia–Gonon, 433 F.3d 587, 591 (8th Cir. 2006) (citation omitted).
As to intent, the district court instructed the jury with the following language:
You may infer the defendant had the requisite advance knowledge
of the robbery if you find the defendant failed to object or withdraw
from actively participating in the commission of interference with
commerce by robbery after the defendant observed another participant
complete the robbery.
Jury Instructions at 10, United States v. Daniel, 1:16-cr-00006-SNLJ-1 (E.D. Mo.
Sept. 19, 2016), ECF No. 98 (emphasis added). Daniel objects to the italicized
portions in the above-quoted instruction and the same language in Instruction No. 9.3
We address each of his two contentions in turn.
3
The instruction on the aiding and abetting the firearm possession count
contained identical language in all relevant respects. See Jury Instructions at 12
(Instruction No. 9). Our analysis applies equally to both.
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i. “May Infer”
Daniel first argues that the district court should have instructed that the jurors
“may but are not required to infer” his intent based on a failure to object or withdraw,
rather than instructing only that the jury “may infer” the same. He points to other
model instructions, as well as other instructions within the set given here, that use
“may but are not required to infer.” He says the jury might have noted the omission
of “but are not required to” and took its conspicuous absence to mean the government
had a lesser burden of proof.
We are not persuaded. The instruction tracked the aiding and abetting
instruction in the Manual of Model Criminal Jury Instructions for the District Courts
of the Eighth Circuit. It is true that a later instruction in Daniel’s case used the phrase
“You may, but are not required to, infer.” Jury Instructions at 13. But there is no
reason to think the omission in a different instruction misled the jury. Omitting the
phrase “but are not required to” does not change the normal meaning of the phrase.
“May” is not “must,” and it does not imply a requirement, but permission. Black’s
Law Dictionary first defines the word “may” as “[t]o be permitted to.” May, Black’s
Law Dictionary (10th ed. 2014). In other words, the jury was permitted to make the
inference or not. There is no reason to think the jury did not apply this commonly
understood meaning.
Viewing the entire charge, we conclude the instructions clearly and correctly
explained the government’s burden. Jury Instructions at 5 (“The presumption of
innocence . . . can be overcome only if the Government proved, beyond a reasonable
doubt, each element of a crime charged.”). The government’s burden was not lessened
as Daniel contends. The district court did not abuse its discretion in using “may infer”
rather than “may but are not required to infer” in Instructions 8 and 9.4
4
Moreover, we note that Daniel’s counsel argued the meaning of the word
“may” to the jury in closing, stating about the word, “what does that mean? You don’t
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ii. “Complete the Robbery”
Daniel’s final argument contends that the district court abused its discretion by
instructing the jury that it could infer advance knowledge if Daniel failed to object
or withdraw after he observed “another participant complete the robbery.” Instead, he
says, the district court should have used the phrase “another participant committing
the robbery.” Thus, in relevant part in Instruction 8, Daniel contends the court should
have instructed:
You may but are not required to infer the defendant had the
requisite advance knowledge of the robbery if you find the defendant
failed to object or withdraw from actively participating in the
commission of interference with commerce by robbery after the
defendant observed another participant committing the robbery.
Defendant’s Proposed Jury Instructions at 4, United States v. Daniel, No. 1:16-cr-
00006-SNLJ-1 (E.D. Mo. Sept. 11, 2016), ECF No. 88 (emphasis added).
Daniel says the instruction given makes little sense: How could an individual
withdraw from “actively participating in the commission” of a crime, after the crime
is complete? The government responds that to instruct the jury that it could not infer
advance knowledge based on a defendant’s actions after the crime is complete, would
mean “no getaway driver waiting in a nearby car could be convicted of aiding and
abetting the robbery.” Appellee’s Br. 43.
The model instruction from which this instruction was taken is based on a
footnote in the Rosemond case. See Manual of Model Criminal Jury Instructions for
the District Courts of the Eighth Circuit § 5.01. In that footnote, the Supreme Court
have to infer that. You have to look at the facts and see what the facts show.”
Transcript of Jury Trial at 418.
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commented that “if a defendant continues to participate in a crime after a gun was
displayed or used by a confederate, the jury can permissibly infer from his failure to
object or withdraw that he had such [fore]knowledge.” Rosemond, 134 S. Ct. at1250 n.9. This language means that if a defendant continues to participate in a crime
as the crime proceeds, after a confederate displays or uses a gun, the jury can infer
from the defendant’s failure to object or withdraw at the time he became aware of the
gun that he had foreknowledge that his confederate would use one. See id. at 1249.
The Rosemond Court simply did not speak to a jury’s ability to make the same
inference if the defendant failed to “withdraw” or object after the crime was complete.
But Rosemond did not hold, or even state, that a jury could not infer
foreknowledge based on a defendant’s post-crime conduct. A jury may do so. Indeed,
in the sentence immediately following the above-quoted language, the Rosemond
Court itself explained, “after all, the factfinder can draw inferences about a
defendant’s intent based on all the facts and circumstances of a crime’s commission.”
Id. at 1250 n.9 (emphasis added). The district court instructed the jury accordingly
here. Jury Instructions at 13 (“Intent or knowledge may be proved like anything else.
You may consider any statements made and acts done by the defendant, and all the
facts and circumstances in evidence which may aid in a determination of defendant’s
knowledge or intent.”). Thus the jury knew it could consider all the
evidence—including evidence of Daniel’s conduct before, during, and after the
robbery took place—in order to determine his intent.
The district court also explicitly instructed the jury that, to convict Daniel of
aiding and abetting interference with commerce by robbery, Daniel must “have had
enough advance knowledge of the extent and character of the robbery that he was
able to make the relevant choice to walk away from the robbery before all elements
of interference with commerce by robbery were complete.” Jury Instructions at 9; see
also id. at 11 (same in Instruction 9). This instruction correctly emphasized that the
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jury must find Daniel had advance knowledge that the robbery would be armed, in
order to convict him on this count. See Rosemond, 134 S. Ct. at 1249–50.
The challenged word “complete” in Instructions 8 and 9 did not mislead the
jury nor did it have a probable effect on the verdict. See Thompson, 686 F.3d at 579.
We conclude, viewing the entire charge to the jury and reading it as a whole, that the
district court fairly and adequately instructed the jury on the law applicable to the
case and did not abuse its discretion. See id.
III. Conclusion
We affirm.
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