United States v. Marquis Wilson

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
Nos. 18-1079 & 18-1097
_______________
UNITED STATES OF AMERICA
v.
MARQUIS WILSON,
Appellant in No. 18-1079
_______________
UNITED STATES OF AMERICA
v.
MALCOLM MOORE,
Appellant in No. 18-1097
_______________
On Appeals from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Nos. 2:14-cr-00209-001 & 2:14-cr-00209-002)
District Judge: Honorable Mark A. Kearney
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
on April 28, 2020
Before: HARDIMAN, GREENAWAY, JR., and BIBAS,
Circuit Judges
(Filed: May 22, 2020)
_______________
Alison Brill
Office of the Federal Public Defender
22 South Clinton Avenue
Station Plaza #4, Fourth Floor
Trenton, NJ 08609
Counsel for Appellant Marquis Wilson
Linda D. Hoffa
Dilworth Paxson
1500 Market Street, Suite 3500E
Philadelphia, PA 19102
Counsel for Appellant Malcolm Moore
William M. McSwain
Robert A. Zauzmer
Salvatore L. Astolfi
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
2
_______________
OPINION OF THE COURT
_______________
BIBAS, Circuit Judge.
A jury convicted Marquis Wilson and Malcolm Moore of
two counts of armed bank robbery, conspiracy to rob banks,
and two counts of using a firearm in the course of committing
a crime of violence. They raise a host of challenges to their
convictions and sentences. We find no error and will affirm on
all fronts. In doing so, we hold that the Sixth Amendment does
not categorically forbid stipulating to a crime’s jurisdictional
element without the defendant’s consent or over the defend-
ant’s objection. Though contesting or conceding guilt is for
criminal defendants to decide, their lawyers may decide
whether to contest or concede a crime’s jurisdictional element.
I. BACKGROUND
Wilson’s and Moore’s convictions stem from two bank rob-
beries in November 2013. On November 4, three men robbed
a Wells Fargo branch in Bala Cynwyd, Pennsylvania. The men
entered the bank with what looked like a semiautomatic hand-
gun and took roughly $81,000. A bank employee named Calia
Kane later admitted to assisting the robbers.
The next morning, Wilson, Moore, and Martril Foster were
pulled over while driving a rental car southbound on I-85 in
North Carolina. After Wilson, the driver, said they were driv-
ing to Georgia and admitted that they had a lot of cash in the
car, the officer suspected that the men were going to buy drugs
3
in Atlanta. He searched the car, found the stolen cash, seized
it, and turned it over to federal drug agents. Afterward, the of-
ficer released the three men.
About a week later, three men showed up at another Wells
Fargo branch in Phoenixville, Pennsylvania. But the bank was
closed for Veterans Day, so the men tried again the next day.
This time the bank was open, and the men got away with
roughly $70,000.
The police later got a tip from Lester Howell, a man whom
Wilson had tried to recruit for the heists, about the first bank
robbery. Howell gave the police a cell phone number of one of
the robbers. The police traced that number to Wilson and
pulled his cell-site location data, which put him at the scene of
the Bala Cynwyd branch right before the first robbery. The data
also showed five calls and seventeen text messages to and from
Kane, the bank employee, that same day. And Howell identi-
fied Wilson and Moore from a video of the robbery.
Because of the similarities in the two robberies, police sus-
pected that they involved the same perpetrators. Wilson,
Moore, Foster, and Kane were charged for their roles in both.
Kane and Foster took plea bargains and cooperated with the
police.
Wilson and Moore were tried jointly for two counts of bank
robbery, conspiracy, and two counts of using a firearm in fur-
therance of a crime of violence. At trial, Wilson conceded that
he had been one of the robbers and instead challenged whether
the gun used was real. Moore maintained his innocence. Both
men were convicted on all counts. The District Court sentenced
4
Moore to 385 months’ imprisonment, one month more than the
mandatory-minimum sentence for his gun charges. Wilson re-
ceived 519 months, the top of his Sentencing Guidelines range.
Both men now appeal. The District Court had jurisdiction
under 18 U.S.C. § 3231, and we have jurisdiction under 18
U.S.C. § 3742(a) and 28 U.S.C. § 1291.
II. COUNSEL’S STIPULATION THAT THE BANKS WERE
FEDERALLY INSURED DID NOT VIOLATE THE SIXTH
AMENDMENT
We start with the Sixth Amendment claim, as it is one of
first impression in our Circuit. Wilson argues that his counsel
violated his right to put on the defense of his choice by stipu-
lating that both Wells Fargo branches were federally insured.
If a defendant robs a federally insured bank, that insurance
gives prosecutors a jurisdictional hook to charge him with fed-
eral bank robbery under 18 U.S.C. § 2113(a) and (f). So coun-
sel’s stipulation to this fact satisfied the jurisdictional element
of federal bank robbery. Wilson says the stipulation was there-
fore “tantamount to a guilty plea.” Wilson Br. 37. Moore
phrases the same argument differently, objecting that he was
never advised of, and never consented to, his counsel’s stipu-
lation.
We disagree. We hold that a defendant need not consent to
a jurisdictional stipulation. Even if a lawyer stipulates to a
crime’s jurisdictional element without getting his client’s con-
sent or over his client’s objection, that stipulation does not per
se violate a criminal defendant’s Sixth Amendment right to
counsel.
5
A. Criminal defendants have the right to dictate the
objectives of their defense and to make
fundamental decisions
When a criminal defendant challenges his counsel’s tactical
choices, we usually analyze that challenge under the two-prong
test of Strickland v. Washington, 466 U.S. 668, 687 (1984). But
when a defendant is deprived of counsel entirely, the error is
structural and the defendant gets a new trial. See Gideon v.
Wainwright, 372 U.S. 335, 340–42 (1963). Likewise, when a
defendant insists on representing himself, denying his right to
do so is structural. McKaskle v. Wiggins, 465 U.S. 168, 177–
78 & n.8 (1984). So too is denying a defendant the right to re-
tain counsel of his choice. United States v. Gonzalez-Lopez,
548 U.S. 140, 150 (2006). Thus, “[t]he Sixth Amendment does
not provide merely that a defense shall be made for the ac-
cused; it grants to the accused personally the right to make his
defense.” Faretta v. California, 422 U.S. 806, 819 (1975).
The Sixth Amendment respects a defendant’s right to coun-
sel and right to autonomy by dividing ultimate decisionmaking
authority between lawyer and defendant. Lawyers control tac-
tics, while defendants get to set big-picture objectives. For tac-
tical decisions, like which arguments to press and what objec-
tions to raise, the lawyer calls the shots. See Gonzalez v. United
States, 553 U.S. 242, 248–49 (2008) (citing New York v. Hill,
528 U.S. 110, 114–15 (2000)). But fundamental decisions be-
long to the defendant alone: whether to plead guilty, waive a
jury trial, testify, or appeal. Jones v. Barnes, 463 U.S. 745, 751
(1983).
6
Recently, in McCoy v. Louisiana, the Supreme Court clari-
fied the line between tactical and fundamental decisions. See
138 S. Ct. 1500, 1507–08 (2018). On the one hand, “strategic
choices about how best to achieve a client’s objectives” are de-
cisions for lawyers, so we review them for ineffectiveness. Id.
at 1508. On the other hand, “choices about what the client’s
objectives in fact are” belong to defendants themselves, and
violating a defendant’s right to make those choices is structural
error. Id.In McCoy, the defendant was charged with murdering three
relatives of his estranged wife and faced a possible death sen-
tence. 138 S. Ct. at 1505–06. His counsel wanted to concede
guilt and argue for mercy at sentencing. Id. at 1506 & n.2. But
the defendant insisted on contesting guilt; he demanded that
counsel instead advance a conspiracy theory that he was being
framed by crooked state and federal officials. See id. at 1513(Alito, J., dissenting). Counsel ignored that demand and con-
ceded before the jury that McCoy had killed the victims. Id. at
1506–07 (majority opinion).
The Supreme Court vacated McCoy’s convictions. The
Sixth Amendment, it held, guarantees defendants the “[a]uton-
omy to decide that the objective of the defense is to assert in-
nocence.” 138 S. Ct. at 1508. Violation of that right is struc-
tural error. Id. at 1511. The Court observed that a defendant
“may wish to avoid, above all else, the opprobrium that comes
with admitting he killed family members.” Id. at 1508. So
“[w]hen a client expressly asserts that the objective of ‘his de-
fence’ is to maintain innocence of the charged criminal acts,
his lawyer must abide by that objective and may not override
7
it by conceding guilt.” Id. at 1509 (quoting U.S. Const. amend.
VI). Yet the Court did not explain what kinds of concessions
count as “conceding guilt.” That is the issue here.
B. Whether to contest a crime’s jurisdictional element
is not a fundamental decision reserved for the
defendant
Wilson argues that under McCoy, his counsel’s stipulation
to the jurisdictional element violated his Sixth Amendment
rights. But this case is different from McCoy. For one, counsel
did not override his client’s expressed wishes. There is no evi-
dence that either defendant objected to the stipulation or de-
manded that counsel not concede this element of the crime.
Appellants argue only that counsel should have consulted with
them or that the District Court should have advised them about
it. True, the stipulation was in some sense contrary to Wilson’s
asserted “objective . . . to contest the charges against him” gen-
erally, and to Moore’s decision to challenge his guilt “in all
respects.” Wilson Br. 37; Moore Br. 39. But neither can show
that he “expressly assert[ed],” and that counsel ignored, a spe-
cific demand to fight the jurisdictional element. McCoy, 138 S.
Ct. at 1509.
Even if appellants had instructed counsel to fight the juris-
dictional element, two more basic factors would distinguish
McCoy. First, that case was about conceding factual guilt:
McCoy claimed that he had not killed the victims. While main-
taining one’s innocence or trying to minimize punishment is a
fundamental objective of the defense, litigating the jurisdic-
tional element is but a technical, tactical means to achieve that
8
objective. Second, jurisdictional elements trigger no “oppro-
brium” or stigma. McCoy, 138 S. Ct. at 1508. In fact, they typ-
ically have nothing to do with the defendant. Whether the
Wells Fargo branches were federally insured is quite separate
from Wilson’s or Moore’s conduct, mental states, or involve-
ment in the robberies. So conceding the jurisdictional element
cast no stigma upon them.
In sum, whether to contest or concede a jurisdictional ele-
ment is a tactical decision reserved for counsel, not defendants.
This is why McCoy distinguished counsel’s concession of fac-
tual guilt from a “strategic” decision “to concede an element of
a charged offense.” 138 S. Ct. at 1510. Here, counsel made the
latter choice. And by conceding jurisdiction, counsel has not
“entirely fail[ed] to subject the prosecution’s case to meaning-
ful adversarial testing.” United States v. Cronic, 466 U.S. 648,
659 (1984). Of course, counsel always retains the ethical re-
sponsibility to consult with the defendant about how to achieve
the defendant’s goals. See, e.g., Model Rules of Prof’l Conduct
r. 1.4(a)(2). But failure to consult with the defendant on the
stipulation or to heed his instruction to contest a jurisdictional
element, while perhaps ethically worrisome, is not structural
error. We express no view about whether counsel’s decision
here met Strickland’s two-part test for effective assistance of
counsel.
9
III. THE FOURTH AMENDMENT CLAIMS FAIL
Next, we turn to a pair of suppression claims, both of which
fail.
A. The traffic stop did not violate the Fourth
Amendment
Wilson and Moore sought to suppress the evidence seized
from their rental car in North Carolina. Moore argues that the
initial stop was improper. And both claim that the police officer
impermissibly extended the stop before he found the evidence.
The District Court denied their motions to suppress. We agree
and will affirm that ruling.
We review the District Court’s factual findings for clear er-
ror and its application of law to those facts de novo. United
States v. Mosley, 454 F.3d 249, 252 (3d Cir. 2006). Our review
of the facts is aided by the dashcam video from Officer Joshua
Freeman’s patrol car, which is in the record and lasts the dura-
tion of the traffic stop.
1. There was reasonable suspicion to support the traffic
stop. Moore first argues that any evidence from the traffic stop
should have been suppressed because the stop was pretextual
and not supported by probable cause. But traffic stops require
only reasonable suspicion, not probable cause. United States v.
Lewis, 672 F.3d 232, 237 (3d Cir. 2012). And pretext is irrele-
vant: “[T]he Supreme Court [has] established a bright-line rule
that any technical violation of a traffic code legitimizes a stop,
even if the stop is merely pretext for an investigation of some
other crime.” Mosley, 454 F.3d at 252 (citing Whren v. United
States, 517 U.S. 806 (1996)).
10
Officer Freeman had reasonable suspicion that the driver
had broken traffic laws. He testified at the suppression hearing
that he saw the car speeding, changing lanes without signaling,
and tailgating the car in front of it. The District Court credited
this testimony. And we can see the tailgating violation for our-
selves on the video. All of these violate North Carolina traffic
law. See N.C. Gen. Stat. §§ 20-141(a)–(b), (d); 20-152(a), 20-
154(a), (b). So there was reasonable suspicion to justify the
stop.
2. Officer Freeman did not impermissibly prolong the stop.
A traffic stop may last as long as needed to “to address the traf-
fic violation that warranted the stop and attend to related safety
concerns.” United States v. Clark, 902 F.3d 404, 409–10 (3d
Cir. 2018) (quoting Rodriguez v. United States, 135 S. Ct.
1609, 1614 (2015)). Beyond that point, the officer must have
reasonable suspicion to prolong the stop and investigate fur-
ther. Id. at 410. Here, the officer did.
Within minutes, Officer Freeman learned suspicious facts
that gave him cause to investigate further. When he first pulled
the car over and asked Wilson for his license and registration,
Wilson explained that it was a rental car. Freeman asked Wil-
son to get out of the car. While Wilson was exiting, Freeman
peered through the hatchback into the trunk area and noticed
that there was no luggage.
The rest of Officer Freeman and Wilson’s conversation
took place in the front of Freeman’s cruiser. Freeman ex-
plained the traffic violations that he had witnessed. Wilson
then volunteered that he was driving from Philadelphia to
Georgia for his uncle’s funeral, that he was tired, and that he
11
planned to stay for a week. During this exchange, Freeman kept
communicating with dispatch while checking Wilson’s license
and the rental-car information. He learned that Wilson’s name
was not on the rental agreement and that the day before, the car
had been rented for one month. This all happened within about
four minutes.
Officer Freeman then went to talk with Moore and Foster,
who were still in the rental car. They said they had been trav-
eling all night to Atlanta to see their brother and that they
planned to stay for a week, but said nothing about a funeral.
When Freeman asked why they had no luggage, they answered
that they would just buy what they needed in Georgia. Freeman
asked Wilson the same question and got the same answer. Wil-
son also admitted that he had a juvenile drug arrest.
Next, Officer Freeman confronted Wilson with his suspi-
cions that Wilson and his passengers were lying about the real
reason for their trip. Freeman told Wilson that he did not buy
his story about his uncle’s funeral. And he asked how much
cash was in the car. Wilson hesitated before finally admitting
that he thought there was roughly $20,000.
We can hit pause on the story right there. At this point, less
than ten minutes had elapsed since Officer Freeman had pulled
over Wilson’s car. As Freeman had not heard back from dis-
patch with information about Wilson and the rental car, the
stop was still justified for traffic enforcement. See Rodriguez,
135 S. Ct. at 1614–15. By then, Freeman had learned more than
enough to establish reasonable, articulable suspicion that the
three men were trafficking drugs: They were driving through
North Carolina in a rental car they had picked up the day before
12
in Philadelphia, but the person named in the rental agreement
was not in the car. They said they were going to Georgia for a
week, but the car was rented for a month and they had no lug-
gage. They gave conflicting stories about their trip’s purpose.
And Wilson confessed to having a lot of cash in the car. Espe-
cially given Freeman’s extensive experience interdicting
drugs, his suspicion was objectively reasonable. See United
States v. Arvizu, 534 U.S. 266, 273–74 (2002). Thus, by the
time Freeman extended the stop to investigate other crimes, he
had more than enough evidence “to establish reasonable suspi-
cion that [the passengers] w[ere] involved in drug trafficking.”
United States v. Green, 897 F.3d 173, 179 (3d Cir. 2018) (cit-
ing Rodriguez, 135 S. Ct. at 1615).
3. Wilson and Moore forfeited the argument that Wilson’s
consent was invalid. After Officer Freeman gave Wilson a
written warning, Wilson consented to a search of the rental car.
Only then did Freeman discover the stolen cash. In the District
Court, Wilson and Moore challenged the voluntariness of that
consent, but the court found that it was voluntary. On appeal,
Wilson and Moore allude to this issue in passing but do not
press it. Thus, they have forfeited this issue. So we need not
decide whether Wilson’s consent was valid. See, e.g., Sikirica
v. Wettach (In re Wettach), 811 F.3d 99, 115 (3d Cir. 2016)
(appellants forfeited an argument by “fail[ing] to develop” it
before the court of appeals).
B. Use of the cell-site location data was proper under
the good-faith exception
Wilson and Moore also argue that, at trial, the Government
improperly introduced cell-site location information about
13
Wilson’s cell phone. In 2014, the Government got a court order
compelling production of that data under a statute that did not
require a search warrant. See 18 U.S.C. § 2703(d). At the time,
our precedent approved of this practice, permitting cell-site or-
ders without probable cause. See In re Application of the U.S.
for an Order Directing a Provider of Elec. Commc’n Serv. to
Disclose Records to the Gov’t, 620 F.3d 304, 313 (3d Cir.
2010). Years later, the Supreme Court abrogated that prece-
dent, holding that these cell-site searches require a warrant sup-
ported by probable cause. Carpenter v. United States, 138 S.
Ct. 2206, 2217–21 (2018). So Wilson and Moore argue that
Wilson’s cell-site location information should have been sup-
pressed.
Not so. After Wilson and Moore filed their briefs, we held
that cell-site location information gathered under § 2703(d) be-
fore Carpenter is protected by the good-faith exception to the
exclusionary rule. United States v. Goldstein, 914 F.3d 200,
204 (3d Cir. 2019). Relying on a § 2703(d) order was objec-
tively reasonable at the time. Id. And there is no claim that the
Government violated the procedures required by § 2703(d). Id.
So the evidence was admissible.
IV. THE DISTRICT COURT DID NOT ERR IN ITS
DISCRETIONARY TRIAL-MANAGEMENT DECISIONS
Next, Moore challenges the District Court’s failure to sever
the two codefendants’ joint trial as well as its failure to grant a
mistrial after a witness mentioned that Wilson and Moore had
a history of drug dealing. These discretionary decisions were
both proper.
14
A. The District Court did not commit plain error by
failing to sever the trial
In a move that Moore calls “[u]nexpected[ ]” and a “sur-
prise,” Wilson’s counsel conceded at trial that Wilson had in
fact robbed both banks. Moore Br. 48–49. By contrast,
Moore’s trial strategy was to deny any involvement. Wilson’s
concession undermined that strategy by bolstering the testi-
mony of cooperators whom Moore needed to discredit. So
Moore argues that the District Court should have severed the
two defendants’ trials right then and there.
Moore’s burden is extremely heavy. Because he did not ask
for a severance at the time, we review the District Court’s fail-
ure to do so sua sponte for plain error. United States v. Hart,
273 F.3d 363, 369–70 (3d Cir. 2001). And plain-error review
or not, “[i]t is not enough to show that severance would have
increased the defendant’s chances of acquittal.” United States
v. McGlory, 968 F.2d 309, 340 (3d Cir. 1992). A defendant
must always “pinpoint ‘clear and substantial prejudice’ ” aris-
ing from the failure to sever and “resulting in an unfair trial.”
Id. (quoting United States v. Eufrasio, 935 F.2d 553, 568 (3d
Cir. 1991)).
Moore cannot carry this burden. The risk of prejudice here
was weaker than in a case in which codefendants present mu-
tually antagonistic defenses: Wilson conceded his own in-
volvement, but the jury could still have found insufficient evi-
dence that Moore was involved with him. And severance is
strong medicine. Even in a case of antagonistic defenses, sev-
erance is not automatically required. See Zafiro v. United
15
States, 506 U.S. 534, 538 (1993). Instead, we “leave[ ] the tai-
loring of the relief to be granted, if any, to the district court’s
sound discretion.” Id. at 538–39.
The District Court exercised that discretion here. It re-
minded the jury that counsel’s statements were not evidence
and that the jury would have to decide each defendant’s guilt
individually. “We presume that the jury follows such instruc-
tions, and regard such instructions as persuasive evidence that
refusals to sever did not prejudice the defendant.” United
States v. Bornman, 559 F.3d 150, 156 (3d Cir. 2009) (quoting
United States v. Urban, 404 F.3d 754, 776 (3d Cir. 2005)). That
presumption is a strong one, and Moore points to nothing spe-
cial here to overcome it.
B. The District Court did not abuse its discretion by
denying a mistrial after a witness mentioned Wilson
and Moore’s drug dealing
Moore also argues that the District Court should have
granted a mistrial after a witness unexpectedly mentioned his
history of drug dealing. According to the prosecution, it had
warned Foster, one of the cooperating coconspirators, not to
mention Wilson and Moore’s history of dealing drugs. Yet
when asked how he knew Wilson and Moore, Foster testified
that “we used to sell drugs together.” Wilson App. 1218. The
defense immediately moved for a mistrial, which the District
Court denied. We review that denial for abuse of discretion.
United States v. Bailey, 840 F.3d 99, 131 n.153 (3d Cir. 2016).
Witnesses often let slip improper evidence. Usually, the so-
lution is a curative instruction telling the jury to disregard what
16
it should not have heard. We presume that the jury will follow
this instruction, unless we see an “ ‘overwhelming probabil-
ity’ ” that it will not and “a strong likelihood” that the improper
evidence “would be ‘devastating’ to the defendant.” United
States v. Gonzalez, 905 F.3d 165, 198 (3d Cir. 2018) (quoting
United States v. Newby, 11 F.3d 1143, 1147 (3d Cir. 1993)).
Here, the District Court gave a curative instruction
promptly. It told the jury to “[d]isregard the comment about
selling drugs,” clarified that the trial was about bank robberies
and guns rather than drugs, and warned the jury that “we’re not
going to either determine or be distracted by anything else.”
Wilson App. 1218–19. The court also clarified that Foster’s
statement “has no evidentiary value.” Wilson App. 1219.
Nor is this the sort of inadvertent slip that would irrevoca-
bly taint the jury. Foster said nothing about robbing banks or
using guns. Drug dealing is unrelated to bank robbing and has
only an indirect connection to gun toting. Given the immediate
and clear curative instruction, this isolated comment would not
have been “devastating.” Gonzalez, 905 F.3d at 198 (quoting
Newby, 11 F.3d at 1147). So the District Court did not abuse
its discretion by denying a mistrial.
V. THE GOVERNMENT DID NOT MAKE IMPROPER
STATEMENTS AT TRIAL
Moore also challenges three of the prosecutor’s statements
in his closing argument. These challenges fail too.
Moore argues that in the prosecutor’s closing arguments, he
vouched for the prosecution’s own credibility and the credibil-
ity of its witnesses. To show improper vouching, the defendant
17
must prove that the prosecutor did two things: first, that he “as-
sure[d] the jury that the testimony of a government witness is
credible,” and second, that he explicitly or implicitly “base[d]
his assurance on either his claimed personal knowledge or
other information not contained in the record.” United States v.
Lore, 430 F.3d 190, 211 (3d Cir. 2005). A defendant must show
that a comment refers, explicitly or implicitly, to “the prosecu-
tor’s [own] personal knowledge” or to “other information not
contained in the [trial] record.” United States v. Walker, 155
F.3d 180, 187 (3d Cir. 1998).
Three statements are at issue. Because Moore objected to
the first of these statements, we review the District Court’s de-
cision to allow that statement for abuse of discretion. United
States v. Vitillo, 490 F.3d 314, 325 (3d Cir. 2007). But because
he did not object to the other two statements, we review those
for plain error. United States v. Harris, 471 F.3d 507, 512 (3d
Cir. 2006). In context, none of the three challenged statements
was improper.
First, the prosecutor argued that even though cooperators
like Kane and Foster “have a motive to lie, . . . [w]e take neces-
sary precautions to ensure that if anybody’s going to get on that
stand and testify, they better darn well be telling the truth.”
Wilson App. 1441–42. The District Court overruled Wilson’s
objection. The prosecution immediately clarified to the jury:
“It’s the plea agreement that I’m referring to . . . . They’re terms
that [Kane and Foster are] bound by. The only way that they
could help themselves here, ladies and gentlemen, is by telling
the truth. That’s their only hope.” Wilson App. 1442.
18
Kane’s and Foster’s plea agreements had been introduced
into evidence. So in context, the prosecutor was not suggesting
that he knew something the jury did not. He was arguing that
the jury should conclude from the plea agreements that Kane
and Foster had everything to lose and nothing to gain by lying.
So the District Court did not abuse its discretion in letting the
prosecutor make this argument. See United States v. Saada,
212 F.3d 210, 225–26 (3d Cir. 2000).
Soon after that, the prosecution added a second statement:
“The defense would have you believe that [Kane and Foster
are] not credible because they would come in here and lie just
to try and get a reduced sentence. In order for you to believe
that, ladies and gentlemen, you have to believe that we are a
bunch of idiots.” Wilson App. 1444. That statement was unfor-
tunate, but he immediately continued: “If you want to believe
that, that’s up to you, but nothing that you’ve seen in this court-
room would lead you to that conclusion.” Id. Allowing that
statement was not error, let alone plain error. The prosecution
was merely commenting on the weakness of the defense’s the-
ory that Kane and Foster were lying. And the prosecutor ex-
plicitly said it was up to the jury to decide who was telling the
truth, based on what “you’ve seen in this courtroom.” Id.The same goes for the third statement, which the prosecutor
made in rebuttal. He said he was “surprised to hear” the de-
fense’s theory that “we’re somehow complicit in this plan to
turn the tables on these two guys and have you find them guilty
when they’re—at least Moore, when he’s really not.” Wilson
App. 1500. After mentioning four agents who investigated the
robbery and testified, the prosecutor asked: “Do you think we
19
all put blinders on and, when we saw the information provided
by Kane and Foster when they first talked to police and . . . there
was no gun mentioned,” that the prosecution “wanted there to
be a gun so bad that we got them to change their story and
didn’t let them plead guilty until they told us it was a gun? Do
you believe that for a minute, ladies and gentlemen? You have
no reason to believe that.” Wilson App. 1500–01.
In context, the prosecutor was commenting on what the jury
would have to believe to accept the defense’s theory: that sev-
eral Government witnesses were lying and that the Govern-
ment had coerced Kane and Foster to lie about a gun. The pros-
ecution had the right to argue that the jury “ha[d] no reason to
believe that” theory because, in its view, there was simply no
evidence in the record to support the defense’s theory. Wilson
App. 1501. So the District Court’s decision to allow these
statements was not error, let alone plain error.
VI. THE EVIDENCE WAS SUFFICIENT TO SUSTAIN THE
CONVICTIONS
Next, both Wilson and Moore challenge the sufficiency of
the evidence that the bank branches were federally insured.
Moore makes two additional arguments: He challenges the ev-
idence of his involvement in the conspiracy and the robberies.
He also challenges the evidence that the gun used in the rob-
beries was real.
Our review is highly deferential. We cannot disturb the
jury’s factual findings if, “after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
20
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979). On this record, all three challenges fail.
A. The stipulation established the jurisdictional element
Appellants’ first challenge is groundless. The Government
introduced a certificate evidencing the federal insurance of
“Wells Fargo Bank, N.A.,” the national parent company cov-
ering all the branches. Wilson App. 1651. And both defend-
ants’ counsel stipulated that both branches were federally in-
sured. A stipulation can establish an element of a crime. See
Old Chief v. United States, 519 U.S. 172, 186 (1997) (citing
Fed. R. Evid. 801(d)(2)(A)).
Appellants fall back on objecting that the stipulation was
not in writing, that they were never advised on it by counsel or
the District Court, and that they did not understand what was
going on. But these objections say nothing about whether there
was enough evidence. There was. The most we can make of
this argument is a rehash of the Sixth Amendment claim. And
as we explained above, whether to stipulate to a jurisdictional
element is a tactical decision left to counsel’s professional
judgment.
B. There was sufficient evidence that Moore was
involved in the crimes
Moore next challenges the sufficiency of the evidence that
he took part in the robberies. He highlights the lack of physical
evidence and the Government’s reliance on cooperators’ testi-
mony. And he notes evidence that all three robbers were about
the same height, while Wilson and Foster are six to nine inches
21
taller than he is. He also claims that there was too little evi-
dence that he was involved in planning the robberies to support
the conspiracy charge.
But there was plenty of evidence that Moore was involved
in all the crimes: Kane testified that Moore took part in plan-
ning discussions before the robberies. Kane and Foster both
testified that Moore went into the banks carrying a gun. And
both testified that Moore had helped pick the target of the sec-
ond robbery. Moore argued to the jury that Kane and Foster
were lying about his role in the robberies. But the jury could
and did reject that argument. And if the jury believed Kane and
Foster, it was justified in finding that Moore was part of the
conspiracy.
We likewise reject Moore’s argument about the height of
the robbers. While some evidence suggested that the robbers’
heights were similar, other witnesses reported that one robber
was “short and stocky” and that the one who held the gun was
“[m]edium-size[d].” Wilson App. 540–41, 672–73. It is not our
job to reconcile that conflicting evidence when reviewing a
cold trial record. That was for the jury.
C. There was sufficient evidence of a real gun
Moore also challenges his conviction under 18 U.S.C.
§ 924(c) for using a gun during the bank robberies. He claims
that the Government never proved that the gun was real, as op-
posed to a BB gun he owned and used as a prop in music vid-
eos. We disagree.
Several eyewitnesses in the banks testified about the gun,
including one who had lifelong experience with guns. The two
22
cooperating witnesses corroborated this: Kane testified that
Wilson and Moore called the gun “the .40.” Wilson App. 895–
96. And Foster testified that before the robberies, Wilson
showed him a loaded “standard-issue Glock.” Wilson App.
1231–32. Based on a video of the robbery, one agent concurred
that the gun was a Glock .40 caliber, the same gun that he car-
ried on duty. Another agent agreed. This testimony was more
than enough evidence for a rational jury to find that the gun
was real. See United States v. Beverly, 99 F.3d 570, 572–73 (3d
Cir. 1996).
VII. BANK ROBBERY WAS PROPERLY CHARGED AND
INSTRUCTED AS A “CRIME OF VIOLENCE” UNDER
18 U.S.C. § 924(C)
Wilson and Moore were each convicted of two counts of
brandishing a gun “during and in relation to” a “crime of vio-
lence” under 18 U.S.C. § 924(c)(1)(A)(ii). They argue that their
crimes are not crimes of violence under that statute, and that
the jury instructions on those counts were improper. The first
objection is a nonstarter. We have recently held that armed
bank robbery is categorically a crime of violence under
§ 924(c)(3)’s elements clause. United States v. Johnson, 899
F.3d 191, 204 (3d Cir. 2018).
Wilson and Moore’s challenge to the jury instruction like-
wise fails. They argue that the District Court should not have
instructed the jury that conspiracy (or perhaps conspiracy to
commit bank robbery) counts as a crime of violence. But even
if that is right, it gets them nowhere. The District Court in-
structed the jury that either conspiracy or armed bank robbery
would count as a predicate crime for a § 924(c) conviction, as
23
long as the jury found that the defendants had used or carried
the gun to further the crime. Wilson App. 1546. The jury con-
victed both defendants on both bank-robbery counts. So we can
tell from the verdict form, as well as from the evidence pre-
sented at trial, that there is no “reasonable possibility” that the
jury based its § 924(c) convictions only on the conspiracy as
opposed to the bank-robbery counts. See United States v. Duka,
671 F.3d 329, 356 (3d Cir. 2011). Thus, even if the instruction
was erroneous, any error was harmless. See United States v.
Waller, 654 F.3d 430, 434 (3d Cir. 2011).
VIII. THE SENTENCES WERE PROPER
Finally, both Wilson and Moore argue that they should get
the benefit of the recent First Step Act, which would lower their
mandatory-minimum sentences. Wilson also argues that his
prison sentence was substantively unreasonable. Neither argu-
ment succeeds.
A. The First Step Act’s change to § 924(c) is not
retroactive to defendants sentenced before the Act
was passed
Wilson and Moore argue that they should benefit from the
First Step Act because their cases were still pending on direct
appeal when it was enacted. Thus, they claim, their sentence
had not really been “imposed” within the meaning of section
403(b) of the First Step Act. See First Step Act of 2018, Pub.
L. No. 115-391, 132 Stat. 5194, 5222. But while this appeal
was pending, we held that a defendant whom a district court
had sentenced before the First Step Act was enacted could not
24
retroactively claim the benefit of section 403(b). United States
v. Hodge, 948 F.3d 160, 162–64 (3d Cir. 2020).
Wilson and Moore also advance a new argument that we
did not address in Hodge: that by titling section 403’s amend-
ment a “[c]larification,” Congress was suggesting that it was
simply conforming the text of § 924(c)(1)(C)(i) to what the
statute was supposed to have meant all along. But whatever the
merits of these arguments, as a later panel we are bound by
Hodge’s reading of section 403. See Reilly v. City of Harris-
burg, 858 F.3d 173, 177 (3d Cir. 2017). So we must reject the
First Step Act argument.
B. Wilson’s sentence was substantively reasonable
The District Court sentenced Wilson to 519 months’ im-
prisonment (43 years and three months), at the top of his Sen-
tencing Guidelines range. Wilson does not challenge the pro-
cedures the District Court followed, but claims that sentence
was substantively unreasonable. He did ask for a lower sen-
tence, right above the 32-year mandatory minimum, so he has
preserved that claim. See Holguin-Hernandez v. United States,
140 S. Ct. 762, 766 (2020). We review the sentence for abuse
of discretion. United States v. Azcona-Polanco, 865 F.3d 148,
151 (3d Cir. 2017). That means “we will affirm it unless no
reasonable sentencing court would have imposed the same sen-
tence on that particular defendant for the reasons the district
court provided.” United States v. Tomko, 562 F.3d 558, 568 (3d
Cir. 2009) (en banc).
25
Wilson explains that even a 32-year sentence would keep
him in prison until he was in his fifties. He argues that impris-
oning him longer serves no valid purpose and that we should
not defer to a Guidelines range where, as here, it is pegged to
a mandatory minimum. But the District Court considered the
requisite statutory sentencing factors set forth in 18 U.S.C.
§ 3553(a). In particular, it focused on general and specific de-
terrence and retribution, factoring in the crimes’ effect on the
victims and Wilson’s recruiting of other participants. The
Court did not defer blindly to the Guidelines; indeed, it consid-
ered both upward and downward departures. In the end, it
chose the top of the Guidelines range. That decision was rea-
sonable.
* * * * *
Criminal defendants have a Sixth Amendment right to
choose the ultimate objectives of their defense. That includes
the right to maintain their factual innocence, even if their law-
yers advise them to admit guilt. But their lawyers call the shots
on the tactics used to achieve those objectives. Defense law-
yers may thus stipulate to the jurisdictional elements of crimes
without their clients’ consent or over their clients’ objection.
Because counsels’ stipulations did not violate the Sixth
Amendment, and because Wilson’s and Moore’s other argu-
ments fail, we will affirm their convictions and sentences.
26