United States v. Keith Reed

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4835
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEITH WILLIE REED,
Defendant - Appellant.
No. 13-4836
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STANLEY RAY WINSTON, a/k/a Stanley Wilson, a/k/a Rashaad
Winston,
Defendant - Appellant.
No. 13-4837
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY CANNON,
Defendant - Appellant.
No. 13-4839
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TOBIAS RICHARD DYER,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:13-cr-00048-CMH-1; 1:13-cr-00048-CMH-2;
1:13-cr-00048-CMH-3; 1:13-cr-00048-CMH-4)
Argued: December 11, 2014 Decided: March 11, 2015
Before AGEE, DIAZ, and FLOYD, Circuit Judges.
Affirmed by published opinion. Judge Floyd wrote the opinion,
in which Judge Agee and Judge Diaz joined.
ARGUED: Melinda VanLowe, LAW OFFICE OF MELINDA L. VANLOWE,
Fairfax, Virginia; Lawrence Hunter Woodward, Jr., SHUTTLEWORTH,
RULOFF, SWAIN, HADDAD & MORECOCK, PC, Virginia Beach, Virginia;
Alfred Lincoln Robertson, Jr., ROBERTSON LAW OFFICE, PLLC,
Alexandria, Virginia; Abram John Pafford, PAFFORD, LAWRENCE &
CHILDRESS, PLLC, Lynchburg, Virginia, for Appellants. Rebeca
Hidalgo Bellows, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee. ON BRIEF: Dana J. Boente,
United States Attorney, Patricia T. Giles, Assistant United
2
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.
3
FLOYD, Circuit Judge:
Four masked men committed a string of robberies around
Alexandria and Arlington, Virginia, in December 2012. During
the third and final robbery, the thieves took $60,411.15 from a
credit union. They also unwittingly took three GPS tracking
devices embedded in the cash. The GPS devices led police to the
four appellants in this case: Keith Reed, Stanley Winston,
Anthony Cannon, and Tobias Dyer (collectively, “Appellants”).
Appellants were ultimately convicted at a jury trial for
multiple offenses. In this consolidated appeal, Appellants
challenge the admission of certain evidence and claim that there
is insufficient evidence to convict them for any of the charged
crimes. For the reasons stated below, we affirm their
convictions.
I.
At trial the government proffered evidence, viewed in the
light most favorable to the government’s case, that supports the
following narrative. United States v. Hassan, 742 F.3d 104, 139
(4th Cir. 2014).
A.
At approximately 8:04 p.m. on December 7, 2012, three
African American men entered the premises of VVM, Inc., a
4
business that sells cell phones and international phone cards in
Alexandria, Virginia. When the men entered, a VVM employee was
serving a customer. The men--wearing ski masks and brandishing
firearms--ordered the employee and customer to the floor and
demanded that they not move. After unsuccessfully trying to
breach a closed Western Union office that shared the premises
with VVM, the men grabbed approximately $800 from the VVM cash
register. They then fled in a Jeep driven by a fourth
accomplice. Police recovered a Jeep the next morning,
approximately a half mile from the VVM store. The Jeep, which
had been reported stolen, was damaged from a punched-in
ignition, and the last four numbers of its license plate matched
those provided by a witness to the VVM robbery.
Camera footage of the robbery, along with witness
testimony, revealed that two of the robbers who entered VVM were
tall (approximately six feet), while the third was shorter
(approximately five feet, six inches). Two of the appellants–-
Cannon and Dyer--are six feet tall, while Winston is shorter at
approximately five feet, six inches. Moreover, all the
appellants are African American.
Cell-phone records show that Appellants had called each
other numerous times throughout the day of the robbery. There
were no calls between them after 6:00 p.m., however, implying
that they were together by that point. Phone records also show
5
Appellants had traveled to Alexandria by 6:30 p.m., were near
VVM at 8:00 p.m., and had returned to their hometown of
Washington, D.C., by 8:13 p.m. (just after the robbery), where
they remained for the rest of the night.
B.
Two days later, on December 9 at approximately 6:30 a.m.,
three masked men brandishing firearms entered a Shoppers Food
Warehouse in Alexandria, while a fourth man waited in a Jeep
outside. The robbers who entered the store were African
American, and again two of them were tall while the third was
shorter. One tall robber climbed a wall into a manager’s
office, while the other two ordered employees and a customer to
the ground while the robbers took money from cash registers.
The robbers fled the store with $15,695. Later that day, some
of the appellants used their phones to take pictures of stacks
of cash and themselves celebrating at a club. Police found a
stolen Jeep, which was also damaged from a punched-in ignition,
a week later in D.C. In the Jeep’s trunk, officers recovered
cash tills containing receipts from the Alexandria Shoppers Food
Warehouse.
Phone records again show that Appellants (primarily Dyer
and Reed) made numerous calls to each other during the day of
the robbery--this time in the early morning from midnight to
6
5:21 a.m. These records also show that although Reed, Cannon,
and Dyer were all in D.C. before 5:30 a.m., at least Reed and
Cannon were in Alexandria and near the Shoppers Food Warehouse
by 6:15 a.m.--only 15 minutes before the robbery.
C.
Two weeks later, on December 22 at approximately 9:50 a.m.,
three masked men entered a Navy Federal Credit Union (“the
Credit Union”) in Arlington, Virginia, while a fourth waited in
a Jeep outside. Once again, two of the robbers were tall, the
other short. The short robber demanded money near the Credit
Union’s main entrance. The tall robbers--one of whom had a
semi-automatic handgun with a drum-style magazine--jumped over
the teller counter. One robber filled a trash can with money
from the teller drawer, while another went to the Credit Union’s
vault, where he took money and cash bags. The robbers fled with
$60,411.15 and--unbeknownst to them--three GPS tracking devices
hidden in the cash. A stolen Jeep matching the description of
the escape vehicle was found later, again damaged with a
punched-in ignition. In addition, the officers recovered a
trash can in the Jeep’s front passenger area, similar to one the
Credit Union robbers had reportedly used to transport the stolen
bags of money.
7
Phone records show that Dyer, Winston, and Reed called each
other several times in the hours before the robbery. Although
they were all in D.C. during the early morning, records show
that at least Winston was in Arlington near the Navy Federal
Credit Union by 9:32 a.m.--approximately 18 minutes before the
robbery.
D.
Law enforcement tracked the GPS signals to an area in
southeast D.C. A police officer canvassed the area for four to
six males. The officer saw Appellants walking on the street.
One of the men left the group to drop a blue bag--later found to
contain a hoodie and ski mask--across the street and then
returned to the group. The officer asked the group whether they
lived nearby and requested that they present identification.
Reed then fled into woods, and the others followed.
Additional police officers arrived and joined in the
pursuit. The officers apprehended each appellant one by one.
When the officers spotted Reed, he had a blue cell phone in his
hand and appeared to be talking on it. Despite orders to keep
his hands up, Reed kept dropping his hands. When officers
approached, an officer saw the phone and a black ski mask near
Reed. Another officer detained Reed and placed his belongings
(including the cell phone) in a property bag, which was
8
transported to a police station. 1 The police also transported a
bag labeled “Dyer” containing an iPhone 5 to the police station,
although at trial the government offered no testimony about how
this phone was seized. Officers found masks, money, and gloves
strewn on the ground throughout the woods where Appellants were
arrested.
After Appellants were apprehended, police found that the
third GPS tracker was emitting signals from Cannon’s residence.
In that house, police found three ski masks, two pairs of black
gloves, thousands of dollars in cash, the third GPS tracker, and
three firearms (including one with a drum-style magazine). In
total, officers seized eight masks, which analysts found
contained DNA consistent with Appellants’ DNA.
E.
On April 23, 2013, a federal grand jury indicted Reed,
Winston, Cannon, and Dyer on 12 counts stemming from the three
robberies: conspiracy to commit Hobbs Act 2 robbery (Count 1);
Hobbs Act robbery (Counts 2 through 4, for each robbery); armed
robbery of a credit union (Count 5); using, carrying, and
1
It was standard practice for officers to place an
arrestee’s personal effects in a property bag labeled with the
arrestee’s name. FBI Special Agent Mark Hess later collected
all the bags from the police station.
2
Hobbs Act, 18 U.S.C. § 1951.
9
brandishing a firearm during and in relation to a crime of
violence (Counts 6 through 8, for each robbery); and being a
felon-in-possession of a firearm (Counts 9 through 12, for each
appellant). After a four-day trial, a jury convicted Appellants
on all counts. Winston and Cannon filed separate motions for
judgment of acquittal, which were denied. The district judge
sentenced each of the appellants to 720 months (60 years) in
prison.
II.
Appellants contest their convictions on several grounds.
First, they argue that the trial judge abused his discretion and
violated the Federal Rules of Evidence by admitting certain
evidence. Similarly, but separately, Dyer claims that admitting
evidence recovered from his cell phone violated the Sixth
Amendment because the government failed to offer any testimony
establishing how the phone was seized. Finally, Appellants
argue that there is insufficient evidence to sustain their
convictions. We assess each argument below.
A.
Appellants first challenge the trial court’s admission of
Exhibit 45, a collection of maps produced by the FBI Cellular
Analysis Detail Team and proffered by the government at trial.
10
The FBI produced the maps using data from Appellants’ cell
phones and their service providers’ cell towers. As explained
at trial, a cell phone communicates with towers (usually the
tower closest to the phone) when a person sends a text, makes or
receives a voice call, or uses cellular data. Service providers
record these communications. From these records, the FBI can
extrapolate a probable area in which the phone was located over
time. This process is known as a historical cell-site analysis.
In this case, the cell-site analysis from Appellants’ phone data
placed at least one of the appellants near the scene of each
robbery, close in time to when the robbery occurred. 3
On appeal, Appellants challenge the government’s use of
their names, rather than phone numbers, when showing the phones’
locations on the maps in Exhibit 45. For example, the map
indicated that it was detailing Cannon’s possible location at
8:12 p.m. on December 7, 2012, rather than showing the
whereabouts of the phone associated with the number
202.510.4853. The government expert testified before the jury
that this labeling would be erroneous for a certain defendant if
3
For example, Reed’s phone data showed that he was in
Washington, D.C. around 6:05 p.m. on December 7, 2012, but near
Alexandria and the VVM store a mere 20 minutes later. His phone
contacted a phone tower in Alexandria again around 8:04 p.m.--
the time of the robbery. A mere ten minutes after the robbery
occurred, Reed’s phone contacted a tower back in D.C.,
suggesting that he quickly returned to D.C. after committing the
VVM robbery.
11
the defendant did not in fact possess the cell phone. Although
Appellants make several different arguments under the Federal
Rules of Evidence for why the trial judge abused his discretion
in admitting Exhibit 45, all the arguments lack merit.
1.
We review the trial court’s admission of Exhibit 45 for
abuse of discretion. United States v. Mouzone, 687 F.3d 207,
216 (4th Cir. 2012). In other words, we look to see whether the
evidentiary ruling was “arbitrary and irrational.” Hassan, 742
F.3d at 130 (quoting United States v. Cole, 631 F.3d 146, 153
(4th Cir. 2011)).
2.
Appellants first argue that the government failed to
authenticate Exhibit 45 under Rule 901(a) of the Federal Rules
of Evidence. See Fed. R. Evid. 901(a) (“[T]he proponent must
produce evidence sufficient to support a finding that the item
is what the proponent claims it is.”). A proponent can
authenticate an item through various means, including
“[t]estimony that an item is what it is claimed to be” or “[t]he
appearance, contents, substance, internal patterns, or other
distinctive characteristics of the item, taken together with all
the circumstances.” Fed. R. Evid. 901(b)(1), (4). “[T]he
12
burden to authenticate under Rule 901 is not high,” as a
“district court’s role is to serve as gatekeeper in assessing
whether the proponent has offered a satisfactory foundation from
which the jury could reasonably find that the evidence is
authentic.” Hassan, 742 F.3d at 133 (quoting United States v.
Vidacak, 553 F.3d 344, 349 (4th Cir. 2009)).
Notwithstanding Appellants’ assertion to the contrary, the
district court did not violate Rule 901 by admitting Exhibit 45.
The government provided adequate reason for the jury to believe
(i) that phone data could be used to approximate the phones’
location at pertinent times and (ii) that each phone number was
associated with a certain appellant. First, as to providing a
foundation for the technical aspects of the cell-site analysis,
the government’s expert, Agent Kevin Horan of the FBI Cellular
Analysis Detail Team, detailed how he conducts a cell-site
analysis and how it reveals the area in which a phone is likely
located at a certain time. See J.A. 703-04, 710-18. This
testimony provided a foundation for how the maps were created
and allowed the jury to conclude that the maps reflected the
phones’ locations.
Second, the government proffered evidence that the jury
could use to attribute each phone to one of the four appellants.
The government tied the phone with number 202.339.9022 to Dyer
through photos of Dyer on the phone and text messages
13
attributing the number to Dyer, including several that used
variations on his first name, Tobias. See J.A. 650-52; S.J.A.
77 (“Tfoool”), 88 (“Tobb”), 120 (“UNCLE TOBYYY”), 123
(“Tobias”), 124 (“Tobias”), 125 (“Toby”), 127 (“Sup love dis
Toby”), 131-70. The government tied 202.594.4127 to Stanley
Winston through a text message that identified the owner as
“Stanley” and testimony that Winston handled the phone at issue
and assisted the officers in searching the phone. J.A. 481-82;
S.J.A. 97. The government tied 240.355.8256 to Reed through
testimony of Officer Harry Singleton, who said that he had seen
Reed talking on the associated blue phone, which was recovered
near where Reed was apprehended. J.A. 234-35, 237-38; see also
J.A. 240-41 (describing how Reed’s property was collected). And
finally, the government tied 202.510.4853 to Cannon, despite no
phone being found, through the labeling of that number in
Winston’s phone as “Cannon.” See S.J.A. 93, 97. Based on this
testimony and the phones’ data, the government provided a
foundation to authenticate each phone as belonging to a certain
appellant. Thus, the trial court’s admission of Exhibit 45 did
not violate Rule 901(a).
3.
Second, Appellants argue that Exhibit 45 was irrelevant
under Rule 401 of the Federal Rules of Evidence. Rule 401
14
provides that “[e]vidence is relevant if: (a) it has any
tendency to make a fact more or less probable than it would be
without the evidence; and (b) the fact is of consequence in
determining the action.” The “fact” at issue here is whether
Appellants committed the robberies. Put simply, Exhibit 45
shows Appellants’ proximity to the scenes of the robberies close
to the times the robberies occurred, as well as Appellants’
respective proximity to one another on the days of the
robberies. This evidence makes it more probable that they
committed the robberies. Thus, Exhibit 45 was plainly relevant
under Rule 401.
4.
Finally, Appellants argue that Exhibit 45 was unfairly
prejudicial, confused the issues, and misled the jury under Rule
403 of the Federal Rules of Evidence. Rule 403 provides that a
“court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice,
confusing the issues, [or] misleading the jury.” We employ a
“highly deferential” standard of review, in which a “decision to
admit evidence over a Rule 403 objection will not be overturned
except under the most extraordinary circumstances, where that
discretion has been plainly abused.” Hassan, 742 F.3d at 132
15
(quoting United States v. Udeozor, 515 F.3d 260, 265 (4th Cir.
2008)).
Appellants’ argument is based on Exhibit 45 (i) purportedly
not being drawn to scale and (ii) using Appellants’ names rather
the phones’ numbers as labels. As to whether Exhibit 45’s scale
caused unfair prejudice or misled the jury, Appellants rely on
bare conclusions. Thus, they have failed to show that the maps
in Exhibit 45 were in fact not drawn to scale or that the scale
caused any unfair prejudice.
Appellants’ argument regarding the use of their names
rather than the phones’ numbers is somewhat stronger, but
likewise without merit. As Appellants correctly note, for the
labeling to be accurate, the jury was required to conclude that
each appellant in fact possessed the phone attributed to him.
Appellants argue that the use of names, not numbers, usurped the
jury’s prerogative to make this determination. The record,
however, shows otherwise. Indeed, the government’s expert and
Appellants’ counsel repeatedly noted at trial (i) that Exhibit
45 was not dispositive of whether Appellants in fact possessed
the phones and (ii) that the use of names would be inaccurate if
the government mistakenly attributed the phones to Appellants.
See, e.g., J.A. 713, 715-18, 734-35, 742-45, 829-30, 835, 849.
This testimony mitigated any likelihood of unfair prejudice,
confusing the issues, or misleading the jury. Therefore, any
16
prejudice from using names rather than numbers does not
substantially outweigh Exhibit 45’s probative value, and the
trial judge did not abuse his discretion in admitting the
evidence.
B.
Appellant Dyer posits his own argument for why the trial
court improperly admitted data retrieved from the cell phone
attributed to him. 4 He argues that admitting this evidence
violated the Sixth Amendment’s Confrontation Clause because not
everyone in the phone’s chain of custody testified at trial.
FBI Special Agent Mark Hess testified only that he took a bag--
labeled “Dyer”--of items found at the police station and used
the contents to produce a case against Dyer and others. Dyer
emphasizes that there was no testimony about who initially
seized the phone and from where it was taken.
The Sixth Amendment’s Confrontation Clause provides that
“[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.”
U.S. Const. amend. VI. Evidence implicates the Confrontation
4
Dyer also argues that the phone and its contents were not
properly authenticated. As discussed in Part II.A of this
opinion, however, this argument is without merit, as there was
an adequate foundation for the jury to conclude that he used the
phone.
17
Clause only if it constitutes a testimonial statement--that is,
a statement made with “a primary purpose of creating an out-of-
court substitute for trial testimony.” Michigan v. Bryant, 131
S. Ct. 1143, 1155 (2011). If a statement’s primary purpose is
“not to create a record for trial,” then the Confrontation
Clause does not apply. Id. Even if a witness’s statement is
testimonial and the witness is absent from trial, however, the
Confrontation Clause permits the statement’s admission if
(1) “the declarant is unavailable” and (2) “the defendant has
had a prior opportunity to cross-examine.” Mouzone, 687 F.3d at
213 (quoting Crawford v. Washington, 541 U.S. 36, 59 (2004)).
Although we review an alleged Confrontation Clause
violation de novo, id., a violation may be found harmless on
appeal if “the beneficiary of the constitutional error can prove
beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained,” United States v. Williams,
632 F.3d 129, 133 (4th Cir. 2011) (brackets and ellipsis
omitted) (quoting Chapman v. California, 386 U.S. 18, 24
(1967)). In finding harmless error, we need not hold that any
error actually occurred; instead, we can assume error. United
States v. Tyler, 943 F.2d 420, 423 (4th Cir. 1991). Indeed, we
should avoid deciding whether there was a violation of the
Confrontation Clause if any error was harmless, as “the
principle of constitutional avoidance . . . requires the federal
18
courts to strive to avoid rendering constitutional rulings
unless absolutely necessary.” Norfolk S. Ry. Co. v. City of
Alexandria, 608 F.3d 150, 156-57 (4th Cir. 2010).
We decline to address whether labeling the bag so as to
attribute its contents to Dyer constituted a testimonial
statement. Instead, we simply find that even if the statement
was testimonial and there was error, any error was harmless
beyond a reasonable doubt. In our view, even if the bag had not
been labeled, the government could still connect the phone to
Dyer based on its data, namely its stored photos and text
messages, which demonstrated that he owned and possessed the
phone. See supra Part II.A. Thus, assuming that there was a
violation of the Sixth Amendment, it was harmless beyond a
reasonable doubt.
C.
We next address whether the trial court correctly denied
Appellants’ motions for judgment of acquittal under Rule 29 of
the Federal Rules of Criminal Procedure. As explained below,
there was sufficient evidence to convict Appellants on every
charged offense.
19
1.
We review a district court’s denial of a motion for
judgment of acquittal de novo. Hassan, 742 F.3d at 139.
“Applying that standard, it is well settled that ‘the verdict of
a jury must be sustained if there is substantial evidence,
taking the view most favorable to the government, to support
it.’” Id. (brackets omitted) (quoting Glasser v. United States,
315 U.S. 60, 80 (1942)). Substantial evidence is that which “a
reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.” Id. (quoting United States v. Moye, 454
F.3d 390, 394 (4th Cir. 2006) (en banc)).
2.
Appellants deny that they committed any robbery and thus
claim that they were wrongfully convicted on all the charged
offenses. They emphasize that no witness of the robberies could
identify them as the assailants. This purported hole in the
government’s case is unsurprising, however, given that the
perpetrators used masks during the robberies. In any event, the
evidence against Appellants that they committed the robberies is
substantial, notwithstanding the lack of positive identification
by eyewitnesses.
20
The strongest case against them is in regard to the third
robbery. Within 30 minutes of the robbery at the Credit Union,
the GPS devices hidden in the stolen cash guided officials to
the area of D.C. where Appellants were found. Once confronted
by an officer, Appellants fled into the woods. There, law
enforcement found Appellants, two of the GPS devices, and cash
and masks strewn on the ground. Then, in Cannon’s home, law
enforcement found the last GPS device, piles of cash, three
firearms that matched witnesses’ descriptions of the firearms
used at the robbery, and additional masks. Through DNA
evidence, law enforcement connected the recovered masks to
Appellants. This evidence was more than enough to convict
Appellants for the offenses related to the third robbery (Counts
1, 4, 5, and 8 through 12).
As to the first and second robberies, the evidence against
Appellants is less overwhelming but nevertheless substantial.
Evidence suggests that all three robberies involved a getaway
driver, use of a stolen jeep, and three masked African Americans
(one short and two tall) entering the businesses. True, these
similarities could in theory amount to mere coincidences. But a
reasonable jury could also fairly connect the first two
robberies to Appellants based on (i) the substantial evidence
that implicated Appellants in the third robbery, (ii) the
substantial similarity between the third robbery and the first
21
two, and (iii) the close temporal and geographical proximity
between all the robberies. Indeed, phone data buttressed the
reasonableness of connecting the third robbery to the first two
based on their similarities.
As to the VVM robbery on December 7, each appellant had at
least 15 phone calls with co-conspirators on the day of the
robbery, while they made no calls to each other within the two-
and-a-half hours before the robbery. A reasonable jury could
conclude that this suggests a great deal of coordination on the
day of the robbery and that Appellants were with each other when
the robbery was committed. Additionally, all the cell phones
attributed to Appellants contacted towers in Alexandria--where
the robbery occurred--in the few hours preceding the robbery.
This evidence was enough for a reasonable jury to convict
Appellants for the offenses related to the VVM robbery (Counts 2
and 6).
Phone data also connected Appellants to the Shoppers Food
Warehouse robbery. Although there was less contact between
Appellants than for the first robbery, the high number of early
morning phone calls between Appellants was nevertheless
significant. Moreover, phones associated with Cannon and Reed
placed them in Alexandria near the time of the robbery. Lastly,
the record contains numerous pictures of stacks of cash and
celebration--pictures recovered from Appellants’ phones and
22
taken within hours of the second robbery-–that implicate
Appellants. 5 Thus, as with the other robberies, the government
proffered sufficient evidence for a reasonable jury to convict
Appellants on the offenses related to the Shoppers Food
Warehouse robbery (Counts 3 and 7).
3.
In addition to Appellants’ general denial that they
committed the robberies, they specifically challenge their
convictions for the first robbery under the Hobbs Act, codified
at 18 U.S.C. § 1951. This offense requires the government to
prove “(1) that the defendant coerced the victim to part with
property; (2) that the coercion occurred through the ‘wrongful
use of actual or threatened force, violence or fear or under
color of official right’; and (3) that the coercion occurred in
such a way as to affect adversely interstate commerce.” United
States v. Buffey, 899 F.2d 1402, 1403 (4th Cir. 1990) (quoting
United States v. De Parias, 805 F.2d 1447, 1450 (11th Cir.
1986)). Appellants challenge the sufficiency of the evidence in
proving the third element--that is, they claim there was no
5
We note that there is less evidence implicating Reed
compared to his co-conspirators. Most notably, there was no
conclusive eyewitness testimony about a getaway driver at the
robberies. Nevertheless, the evidence against him was
substantial and sufficient to sustain his conviction on all
charged counts.
23
evidence that the first robbery adversely affected interstate
commerce.
Notwithstanding Appellants’ arguments to the contrary, the
government established that VVM was the victim of the first
robbery and that VVM’s business affected interstate commerce. A
VVM employee testified that he was selling an international
phone card when the robbery occurred, that the robbers took
money from his cash register, and that all other stores on the
premises were closed at the time of the robbery. In other
words, evidence showed that VVM conducted business in interstate
commerce and that the business was interrupted by Appellants.
Thus, we affirm Appellants’ convictions under the Hobbs Act for
the first robbery.
4.
Finally, Appellants challenge their convictions under 18
U.S.C. §§ 922(g)(1) and 924(c) by arguing that the government
presented no evidence that the firearms found at Cannon’s house
traveled in interstate commerce or were used in the robberies.
We find, however, that their convictions under each respective
statute were proper.
24
a.
Counts 9 through 12 charged Appellants under 18 U.S.C.
§ 922(g)(1) with being felons in possession of a firearm. To
prove a violation of § 922(g)(1), the government must prove
beyond a reasonable doubt that:
(1) the defendant previously had been
convicted of a crime punishable by a term of
imprisonment exceeding one year; (2) the
defendant knowingly possessed, transported,
shipped, or received, the firearm; and
(3) the possession was in or affecting
commerce, because the firearm had travelled
in interstate or foreign commerce at some
point during its existence.
United States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en
banc). Appellants do not dispute that they are all convicted
felons. Instead, they contest whether the government proffered
sufficient evidence proving the second and third elements.
The convictions under § 922(g)(1) arose from the third
robbery. Witnesses described the firearms used in this robbery
as having unique features (such as a drum-style magazine) that
matched features of the firearms found at Cannon’s house. Based
on the similarity of the firearms and their discovery in
Cannon’s house within hours of the robbery, a reasonable jury
could conclude that the firearms were the same. The natural
result of that conclusion is that the firearms traveled in
interstate commerce by going from D.C. to Virginia and back.
See 18 U.S.C. § 10 (defining “interstate commerce” as including
25
“commerce between one State” and “the District of Columbia”);
United States v. Gould, 568 F.3d 459, 471 (4th Cir. 2009)
(noting that travel across a state line constitutes interstate
commerce). Although the government did not prove that each co-
conspirator actually held a firearm on December 22, their
constructive possession of the firearms is sufficient to support
a § 922(g)(1) conviction. United States v. Branch, 537 F.3d
328, 343 (4th Cir. 2008). As a result, a reasonable jury could
convict Appellants under § 922(g)(1).
b.
Counts 6 through 8 charged Appellants under 18 U.S.C.
§ 924(c) with possessing firearms in furtherance of a crime of
violence--that is, each of the three robberies. To prove a
violation of § 924(c), the government was required to “present
evidence indicating that the possession of a firearm furthered,
advanced, or helped forward a crime of violence.” Hassan, 742
F.3d at 142 (quoting United States v. Khan, 461 F.3d 477, 489
(4th Cir. 2006)). “A defendant may be convicted of a § 924(c)
charge on the basis of a coconspirator’s use of a gun if the use
was in furtherance of the conspiracy and was reasonably
foreseeable to the defendant.” United States v. Wilson, 135
F.3d 291, 305 (4th Cir. 1998).
26
As discussed supra Part II.C.2, there was sufficient
evidence for a reasonable jury to find that Appellants committed
each robbery. The evidence shows that each robbery involved the
use of a firearm. As a result, a reasonable jury could find
that Appellants used a firearm in furtherance of each of the
robberies, and their convictions for those charged offenses were
proper.
III.
For the aforementioned reasons, none of the challenges
raised on appeal have merit, and we affirm Appellants’
convictions.
AFFIRMED
27