Franchie Farmer v. United States

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1483
FRANCHIE FARMER,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 14-cv-694-JPG — J. Phil Gilbert, Judge.
____________________
ARGUED SEPTEMBER 19, 2016 — DECIDED AUGUST 15, 2017
____________________
Before POSNER, WILLIAMS, and SYKES, Circuit Judges.
SYKES, Circuit Judge. In 2012 a jury convicted Franchie
Farmer of armed bank robbery, see 18 U.S.C. § 2113(a) and
(d), and brandishing a firearm during a crime of violence, see
id. § 924(c)(1)(A)(ii). Farmer drove the getaway car and was
not in the bank during the robbery. Her convictions were
thus premised on an accomplice theory of liability as an
aider or abettor under 18 U.S.C. § 2.
2 No. 15-1483
In 2014 the Supreme Court held that a § 924(c) conviction
under an accomplice theory requires proof that the accom-
plice had “foreknowledge that his confederate [would]
commit the offense with a firearm.” Rosemond v. United
States, 134 S. Ct. 1240, 1249 (2014) (quotation marks omitted).
The jury at Farmer’s trial was not instructed on a fore-
knowledge requirement for the § 924(c) charge. Understand-
ably so; her trial predated Rosemond by two years. Nor did
her counsel challenge the § 924(c) instruction, either at trial
or in her direct appeal. See United States v. Farmer, 717 F.3d
559 (7th Cir. 2013) (affirming the district court on all counts).
Farmer did challenge the instruction, albeit obliquely, in a
motion under 28 U.S.C. § 2255 after Rosemond was decided.
She argued that her trial counsel was constitutionally inef-
fective for failing to object to the § 924(c) instruction. The
district judge denied relief because Farmer failed to establish
that she was prejudiced by her counsel’s failure to object.
Farmer’s argument has shifted somewhat on appeal. She
now raises the Rosemond issue directly rather than through
the prism of trial counsel’s ineffectiveness. Farmer procedur-
ally defaulted this claim and must establish cause and actual
prejudice to excuse the default. She hasn’t done so. The
government presented plenty of evidence that Farmer had
advance knowledge that a gun would be used in the robbery,
so the Rosemond error was not grave enough to cause actual
prejudice. We affirm.
I. Background
In 2008 two people robbed a bank at gunpoint in the
small town of Tamms in southern Illinois, taking more than
$14,000. During the robbery, a bank customer managed to
No. 15-1483 3
escape the premises and hide a short distance away. The
customer saw the two robbers leave the bank and flee in the
back of a dark SUV. The witness told police that the two
front seats of the SUV were already occupied when the
robbers jumped in, but he didn’t get a good look at either
person. In their haste to leave the bank after the robbery, one
of the robbers dropped the demand note. It read: “This is a
robbery, I have a gun, don’t cause a scene and no one will
get hurt, I do have a gun!!!”
It did not take long for police to catch the two bank rob-
bers. After seeing surveillance footage on the local news, an
ex-girlfriend identified Richard Anderson as one of the
robbers; his fingerprints on the demand note confirmed his
involvement. A couple of weeks later, a lead from a pawn-
shop robbery across the river in Missouri pointed to Holli
Wrice as the other robber. Police also identified the getaway
car as a black 2002 Toyota Sequoia. An officer spotted the car
in Tamms and learned that it was registered to Franchie
Farmer, who admitted that she had loaned the Sequoia and
her cell phone to Wrice on the day of the robbery but
claimed that she didn’t know anything about Wrice’s activi-
ties that day.
Farmer told the police that at the time of the robbery, she
had been working at her job as an in-home caretaker for a
mentally disabled woman. As police looked into Farmer’s
story, however, additional questions arose. Cell-phone
records indicated that a number of calls were placed be-
tween Farmer’s cell phone and Wrice’s cell phone just
before, during, and after the bank robbery. During the same
period, a number of calls were placed from Farmer’s cell
4 No. 15-1483
phone to her family members—people whom Wrice had no
reason to call.
Farmer’s account was also directly contradicted by Wrice
and Anderson, who agreed to cooperate with the govern-
ment in its case against Farmer after being charged and
negotiating plea deals. A grand jury indicted Farmer on one
count of armed bank robbery in violation of § 2113(a) and (d)
and one count of brandishing a firearm during a crime of
violence in violation of § 924(c)(1)(A)(ii). The charges were
premised on an accomplice theory of liability. See 18 U.S.C.
§ 2.
Wrice and Anderson testified at trial that Farmer was the
getaway driver for the robbery and that she brought along
the mentally disabled woman who was in her charge—
presumably the front-seat passenger espied by the bank
customer. According to their testimony, Farmer met them
behind a mall on the day of the robbery and they drove in
separate cars to a rural plot of land Farmer owned outside of
Tamms. When they arrived, Farmer wrote the demand note.
Anderson and Wrice then got into the Sequoia, and they
drove together to the bank. After the robbery Farmer drove
everyone back to the rural property where they split up and
went their separate ways.
Wrice testified that Farmer had been involved in plan-
ning the robbery for several months and that the two had
discussed using guns on many occasions. Anderson was
unsure whether Farmer knew that he and Wrice were going
to brandish guns in the bank, but Wrice testified that
Anderson was a late addition to the team and hadn’t been
present at the earlier planning sessions. And of course, as
we’ve noted, both Wrice and Anderson testified that Farmer
No. 15-1483 5
wrote the demand note, which twice mentioned the presence
of a gun. Wrice described the discussion that she and Farmer
had while Farmer prepared the note:
Should we just display a gun, or should we
show them the gun, or let’s not display the
gun, or let’s put on here that you do have a
gun, cooperate, you know, nobody gets hurt.
And so we just wanted to—we discussed it,
just leaving it kind of simple but to the point,
but let them know we do have a gun.
A government expert also testified that the handwriting on
the note matched Farmer’s.
The jury convicted Farmer on both counts, and the dis-
trict judge imposed a sentence of 141 months in prison. On
direct appeal Farmer raised two issues: (1) a claim of juror
impropriety and (2) a challenge to the sufficiency of the
evidence. We affirmed the convictions. Farmer, 717 F.3d at
566.
In 2014 the Supreme Court decided Rosemond v. United
States, 134 S. Ct. 1240, which clarified the government’s
burden to convict a defendant under § 924(c) as an aider and
abettor. Rosemond held that accomplice liability requires
proof that the defendant had “advance knowledge” that his
coconspirators intended to use a gun during the crime. Id. at
1249. To show advance knowledge, the government must
prove that the defendant learned about the planned gun use
with enough time to “attempt to alter th[e] plan or, if unsuc-
cessful, withdraw from the enterprise.” Id. “[I]ntent to aid an
armed offense” arises only after the defendant decides to
6 No. 15-1483
continue his participation in a venture that he learns will
involve guns. Id.
Shortly after Rosemond was decided, Farmer moved for
collateral relief under § 2255. She claimed, as relevant to this
appeal, that her trial counsel was constitutionally ineffective
for failing to object to the district court’s § 924(c) jury in-
struction, which did not require the jury to find that she had
advance knowledge that her coconspirators would be using
a gun.
The judge denied the motion. Pointing to several pieces
of evidence establishing that Farmer knew in advance that a
gun would be used—Wrice’s testimony, the demand note,
the handwriting expert’s testimony—the judge concluded
that counsel’s failure to object to the § 924(c) instruction was
not prejudicial. In light of this evidence, the judge held, there
was not a reasonable probability that a properly instructed
jury would have acquitted Farmer on the gun charge.
II. Discussion
We review the denial of a § 2255 motion under a split
standard of review: legal questions are reviewed de novo;
factual findings are reviewed for clear error. Delatorre v.
United States, 847 F.3d 837, 843 (7th Cir. 2017).
Our first question is whether the rule established by
Rosemond applies retroactively on collateral review. We’ve
already held that it does. Montana v. Cross, 829 F.3d 775, 783–
84 (7th Cir. 2016). To recap our reasoning: A decision of the
Supreme Court announcing a new rule of criminal law
applies to “convictions that are already final … only in
limited circumstances.” Schriro v. Summerlin, 542 U.S. 348,
351 (2004). Generally speaking, new substantive rules apply
No. 15-1483 7
retroactively, but new procedural rules do not. Id. at 351–52.
“A rule is substantive rather than procedural if it alters the
range of conduct or the class of persons that the law punish-
es.” Id. at 353; see also Crayton v. United States, 799 F.3d 623,
625 (7th Cir. 2015) (decisions are retroactive if they hold
“that the law does not (or cannot constitutionally) make
particular conduct criminal”).
Rosemond held that to convict a defendant of a § 924(c)
violation as an accomplice, the government must prove that
he had advance knowledge of his collaborator’s plan to use
or carry a gun during the commission of the crime. 134 S. Ct.
at 1249. “Advance knowledge” means that the defendant
learned about the gun and its planned use sufficiently in
advance of the crime to “attempt to alter th[e] plan or, if
unsuccessful, withdraw from the enterprise.” Id. By deciding
instead “to go ahead with his role in the venture,” the de-
fendant “shows his intent to aid an armed offense.” Id.
Before Rosemond, a defendant in this circuit could be con-
victed of violating § 924(c) on an accomplice theory if the
government proved that he knew “either before or during the
crime[] that the principal [would] possess or use a firearm.”
United States v. Daniels, 370 F.3d 689, 691 (7th Cir. 2004)
(emphasis added); see also United States v. Taylor, 226 F.3d
593, 596 (7th Cir. 2000) (holding that aiding and abetting
under § 924(c) requires proof that “(1) the defendant knew,
either before or during the crime, of the principal’s weapon
possession or use; and (2) the defendant intentionally facili-
tated that weapon possession or use once so informed”).
In other words, pre-Rosemond the government did not
have to prove that the defendant learned about the gun with
enough time to try to change his confederate’s plan or to
8 No. 15-1483
remove himself from the venture altogether. Rather, accom-
plice liability was possible even if the defendant learned of a
coconspirator’s use of the gun while the crime was under-
way—as long as the defendant continued to participate after
learning about the gun. See Taylor, 226 F.3d at 597. Rosemond
limits liability under the latter circumstances:
[W]hen an accomplice knows nothing of a gun
until it appears at the scene, he may already
have completed his acts of assistance; or even if
not, he may at that late point have no realistic
opportunity to quit the crime. And when that
is so, the defendant has not shown the requisite
intent to assist a crime involving a gun.
134 S. Ct. at 1249.
By requiring proof of the defendant’s advance
knowledge, Rosemond “alter[ed] the range of conduct … that
the law punishes.” Schriro, 542 U.S. at 353. Rosemond thus
established a new substantive rule that is retroactive to cases
on collateral review. See Montana, 829 F.3d at 783–84 (ex-
plaining that Rosemond addressed the requirements for
criminal liability under § 924(c) and thus established a
substantive rule).
In a shift from her approach in the district court, Farmer
now raises the Rosemond issue directly—as a challenge to the
erroneous § 924(c) jury instruction—rather than indirectly as
the premise for a claim of trial counsel’s ineffectiveness. 1
1 Farmer now frames the question presented as “[w]hether Ms. Farmer’s
sentence under 18 U.S.C. 924(c) should be vacated where … the aiding
and abetting jury instruction was an error that did not require the jury to
No. 15-1483 9
Framed this way, the issue is new on appeal and Farmer
must overcome procedural default. To excuse a procedural
default, she must establish both cause for her failure to raise
the issue earlier and actual prejudice resulting from the
erroneous jury instruction. 2 United States v. Frady, 456 U.S.
152, 168 (1982); see also Mankarious v. United States, 282 F.3d
940, 943–44 (7th Cir. 2002).
To establish actual prejudice, Farmer must “shoulder the
burden of showing[] not merely that the errors at [her] trial
created a possibility of prejudice, but that they worked to
[her] actual and substantial disadvantage, infecting [her]
entire trial with error of constitutional dimensions.” Frady,
456 U.S. at 170. She has not carried this burden. The gov-
ernment introduced multiple pieces of evidence establishing
that Farmer knew well in advance that her coconspirators
would be armed during the robbery. Wrice testified that
before the robbery she and Farmer discussed this plan
multiple times. Wrice and Anderson both testified that
Farmer wrote the demand note, which twice referred to a
gun. Finally, a government expert testified that the hand-
writing on the demand note matched Farmer’s own.
find that Ms. Farmer had actual advance knowledge that her alleged
confederates would use a firearm.”
2 Farmer argues that the government forfeited procedural default by not
raising it in the district court. The government had no reason to raise
procedural default as a defense to Farmer’s current claim—her direct
challenge to the jury instruction—because Farmer didn’t raise that claim
in district court.
10 No. 15-1483
In short, the trial record contains ample evidence of
Farmer’s foreknowledge that guns would be used in the
robbery. Accordingly, the instructional error did not work to
her actual and substantial disadvantage. Put slightly differ-
ently, we are not “in grave doubt as to the harmlessness of
the error.” Mankarious, 282 F.3d at 944. The procedural
default is not excused.
AFFIRMED.