United States v. Khusar Mobley

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10561
Plaintiff-Appellee,
D.C. No.
v. 4:12-cr-00235-YGR-1
KHUSAR MOBLEY,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Argued and Submitted
March 11, 2015—San Francisco, California
Filed October 15, 2015
Before: Consuelo M. Callahan, Milan D. Smith, Jr.,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Watford
2 UNITED STATES V. MOBLEY
SUMMARY*
Criminal Law
The panel affirmed convictions for assault on a federal
officer, 18 U.S.C. § 111(b); robbery of mail, money, or other
property belonging to the United States, 18 U.S.C. § 2114(a);
conspiring to commit those offenses, 18 U.S.C. § 371; and
brandishing a firearm in furtherance of a crime of violence,
18 U.S.C. § 924(c)(1)(A), in a case in which the defendant
and two cousins attempted to rob an ATF special agent who
was posing as a buyer of illegal firearms.
The panel rejected the defendant’s contention that no
reasonable jury could have rejected his claim of self-defense
with respect to the assault charge.
The panel rejected the defendant’s contention that the
government did not introduce sufficient proof that the agent
actually had the money in his “charge, control, or custody” at
the time the defendant assaulted him.
The panel rejected the defendant’s contention that the
evidence does not support his conviction under § 371, which
makes it unlawful “to commit any offense against the United
States.” The defendant argued that the evidence established,
at most, only that he conspired to assault a person who was
not a federal officer and did not have custody of any money
or other property belonging to the United States. The panel
held that a rational jury could have inferred that the defendant
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. MOBLEY 3
and his cousins conspired to assault and rob not just the ATF
agent, but anyone who accompanied him to the transactions
as well. The panel also held that to be guilty of conspiring to
assault a federal officer, the defendant did not need to know
the ATF agent’s official status, and did not need to know that
the money the agent had in his custody belonged to the
United States.
COUNSEL
Mary E. Pougiales (argued), Pougiales Law Offices, Novato,
California, for Defendant-Appellant.
Owen P. Martikan (argued), Assistant United States Attorney;
Melinda Haag, United States Attorney; Barbara J. Valliere,
Chief, Appellate Division, United States Attorney’s Office,
San Francisco, California, for Plaintiff-Appellee.
OPINION
WATFORD, Circuit Judge:
The government charged three cousins—appellant Khusar
Mobley, Otis Mobley, and D’Marce Hutcherson—with
various crimes arising out of their attempt to rob a federal
officer. The officer in question, Special Agent Tehran Palmer
of the Bureau of Alcohol, Tobacco, Firearms, and Explosives
(ATF), was posing as a buyer of illegal firearms. When
Agent Palmer showed up to purchase the grenade launcher
the defendants had agreed to sell, the defendants attempted to
rob him of the buy money at gunpoint. Otis (to avoid
confusion, we will refer to him by his first name) and
4 UNITED STATES V. MOBLEY
Hutcherson pleaded guilty during trial, leaving Mobley to
face the jury alone. The jury convicted Mobley of assault on
a federal officer, 18 U.S.C. § 111(b); robbery of mail, money,
or other property belonging to the United States, § 2114(a);
conspiring to commit the above offenses, § 371; and
brandishing a firearm in furtherance of a crime of violence,
§ 924(c)(1)(A).
Mobley challenges the sufficiency of the evidence
introduced to support the convictions, as well as the legality
of the 147-month sentence imposed by the district court. We
address Mobley’s sufficiency challenges here. We reject his
sentencing arguments in an unpublished memorandum
disposition filed together with this opinion.
I
Mobley’s older cousin, Otis, arranged to sell a grenade
launcher for $1,000 to an acquaintance named Aaron
McGrew. Otis and McGrew agreed to meet mid-afternoon in
the parking lot of a Chevy’s restaurant. Otis drove to the
meeting site accompanied by Mobley and Hutcherson. None
of them knew that McGrew was working as an informant, so
they did not suspect that one of the men accompanying
McGrew—Agent Palmer—was actually an undercover agent.
Agent Palmer planned to buy the grenade launcher using
$1,000 in ATF funds, which he brought with him to the deal.
When Otis, Mobley, and Hutcherson pulled into the
parking lot, McGrew and Agent Palmer were already there,
parked in a four-door car being driven by Agent Palmer.
Another informant who joined them, Dwight Bullard, was
standing outside the car. McGrew got out of the car and
greeted Otis. McGrew then got back into the front passenger
UNITED STATES V. MOBLEY 5
seat of Agent Palmer’s car, while Mobley and Hutcherson got
into the back seat, with Mobley sitting behind McGrew and
Hutcherson sitting behind Agent Palmer. Otis and Bullard
stood outside the car nearby.
What happened next was sharply disputed at trial. We
first recount the facts viewed in the light most favorable to
the government, since that is the lens through which we must
review Mobley’s sufficiency challenges. United States v.
Ruiz-Lopez, 749 F.3d 1138, 1141 (9th Cir. 2014).
After the parties exchanged introductions, Mobley
removed an object concealed under a coat he was carrying,
which McGrew and Agent Palmer expected to be the
promised grenade launcher. Instead, it was a loaded TEC-9
handgun. Mobley suddenly lunged forward over the center
console, chambered a round, and pointed the gun at Agent
Palmer’s head and chest, which caused Agent Palmer to grab
the gun and attempt to direct the barrel away from him.
Hutcherson then drew his own gun and aimed it at Palmer’s
head. McGrew, sensing that a bad situation was about to get
worse, jumped out of the car and took off running. Agent
Palmer and Mobley engaged in a brief struggle for control of
Mobley’s gun, which Agent Palmer lost. While holding
Agent Palmer at gunpoint, Mobley or Hutcherson shouted,
“Where’s the money at?” Mobley demanded, twice, that
Agent Palmer empty out his pockets. At that point, Bullard
reached through the open front passenger door and grabbed
Mobley’s gun, pulling the barrel away from Agent Palmer.
As Bullard and Mobley fought for control of the weapon,
Mobley tried to fire it several times, but Bullard managed to
thwart those attempts by placing his thumb behind the trigger.
Bullard eventually succeeded in disarming Mobley, and
Agent Palmer’s cover team of plainclothes officers rushed in
6 UNITED STATES V. MOBLEY
at about the same time. They arrested Mobley on the spot
and shot the still-armed Hutcherson as he attempted to flee.
Officers arrested Otis a short time later in a nearby field.
According to Mobley’s version of events, this was all just
a big misunderstanding. Mobley testified at trial that he had
negotiated his own side deal—separate from the grenade
launcher sale negotiated by Otis—to sell McGrew the TEC-9
handgun for $700. Mobley claimed that he was merely trying
to show the gun to McGrew when Agent Palmer aggressively
tried to take it from him. Mobley asserted that he reasonably
(if mistakenly) believed he was under attack, and that all of
his subsequent actions were taken in self-defense.
II
Mobley challenges the sufficiency of the evidence on
three fronts.
First, he contends that no reasonable jury could have
rejected his claim of self-defense with respect to the assault
charge under 18 U.S.C. § 111(b). Although the government
bore the burden of proving that Mobley did not act in self-
defense, it easily met that burden here. Obviously, if the jury
had believed Mobley’s version of events, it would have
acquitted him. The jury chose instead to believe the
testimony of Agent Palmer and McGrew, whose testimony
completely negated Mobley’s claim of self-defense. In
deciding whom to believe, the jury did not have to take
anyone’s word for what happened, because Agent Palmer’s
car had been equipped with hidden audio and video recorders
that captured everything on tape. The jury could judge for
itself whose version of events was more credible. The tape
does not support Mobley’s version of events so decisively
UNITED STATES V. MOBLEY 7
that a rational jury would have been compelled to believe
him. In fact, if anything, the tape strongly confirms Agent
Palmer’s and McGrew’s accounts of what happened.
Second, Mobley attacks the sufficiency of the evidence
supporting the robbery conviction under 18 U.S.C. § 2114(a).
That statute provides, in relevant part: “A person who
assaults any person having lawful charge, control, or custody
of any mail matter or of any money or other property of the
United States, with intent to rob, steal, or purloin such mail
matter, money, or other property of the United States, [shall
be guilty of a crime].” (Emphasis added.) Mobley contends
that the government did not introduce sufficient proof that
Agent Palmer actually had the buy money in his “charge,
control, or custody” at the time Mobley assaulted him.
Mobley is wrong. Agent Palmer testified that he brought
$2,000 in ATF funds with him to the deal, which he intended
to use to buy the grenade launcher and any other weapons the
defendants might have offered. Contrary to Mobley’s
argument, the fact that Agent Palmer never “showed” the buy
money during the transaction is of no consequence. It was
enough for the government to prove that Agent Palmer had
the ATF funds on his person, even if he never let Mobley see
the money. Agent Palmer’s uncontradicted testimony that he
had the ATF funds in his custody provided ample evidence
from which a rational jury could conclude that this element of
the statute was satisfied. See United States v. Nevils,
598 F.3d 1158, 1163–65 (9th Cir. 2010) (en banc).
Finally, Mobley contends that the evidence does not
support his conspiracy conviction under the general
conspiracy statute, 18 U.S.C. § 371, which makes it unlawful
to conspire “to commit any offense against the United
8 UNITED STATES V. MOBLEY
States.” The conspiracy count charged Mobley with
conspiring to commit the two substantive offenses charged in
the indictment: assault on a federal officer in violation of
§ 111(b); and robbery of mail, money, or other property
belonging to the United States in violation of § 2114(a).
Mobley argues that the evidence established, at most, only
that he conspired to assault and rob McGrew. Because
McGrew was not a federal officer and did not have custody
of any money or other property belonging to the United
States, Mobley submits that his conspiracy conviction must
be reversed.
We disagree with Mobley’s argument, which turns on the
scope of the conspiracy proved at trial. A rational jury could
have inferred that Mobley and his cousins conspired to
assault and rob not just McGrew, but anyone who
accompanied him to the transaction as well. Mobley testified
that when he arranged to meet McGrew at the Chevy’s
restaurant, McGrew said he would have one other person with
him. So Agent Palmer’s presence in the car, at least, was no
surprise. Perhaps even more telling, after Mobley got in the
car and drew the TEC-9, he did not direct his assault at
McGrew. Right out of the box, Mobley pointed the gun at
Agent Palmer, and Hutcherson did the same with his weapon.
Their demands for money were directed at Agent Palmer
alone, McGrew having fled immediately after the assault on
Agent Palmer began. From this evidence, the jury could
reasonably have concluded that the scope of the conspirators’
agreement was not limited to assaulting and robbing
McGrew.
Mobley of course did not know that one of the men
accompanying McGrew would turn out to be a federal officer,
or that the buy money involved would turn out to be money
UNITED STATES V. MOBLEY 9
belonging to the United States. But the government did not
need to prove Mobley’s knowledge of those facts to secure a
conviction under § 371.
As a general rule, if knowledge of a fact necessary to
establish federal jurisdiction is not required for the
substantive offense, then it is not required under § 371 for a
conspiracy to commit that offense either. United States v.
Feola, 420 U.S. 671, 687, 695–96 (1975). In Feola, the
Court held that the victim’s status as a federal officer is a fact
necessary to establish federal jurisdiction under § 111, but the
government need not prove the defendant’s knowledge of that
fact in order to secure a conviction. Id. at 684. The Court
concluded that a contrary reading of the statute would be
inconsistent with Congress’ purpose to accord “maximum
protection to federal officers by making prosecution for
assaults upon them cognizable in the federal courts,” rather
than leaving such prosecutions to the States alone. Id. The
Court saw no unfairness in construing the statute not to
require knowledge of the victim’s official status because in
most cases such knowledge is irrelevant to establishing the
wrongfulness of the defendant’s conduct. Acting with the
intent to assault someone is still wrongful, even if the
defendant mistakenly thought he was assaulting a private
citizen. (The Court noted one exception—cases in which the
defendant’s “ignorance of the official status of the person
assaulted or resisted negates the very existence of mens rea.”
Id. at 686. Because the jury rejected Mobley’s self-defense
claim, that exception does not apply here.) Thus, to be guilty
of conspiring to assault a federal officer, Mobley did not need
to know Agent Palmer’s official status.
We conclude that, by the same reasoning, Mobley did not
need to know that the buy money Agent Palmer had in his
10 UNITED STATES V. MOBLEY
custody belonged to the United States. Under § 2114(a), the
federal character of the property at issue is a fact necessary to
establish federal jurisdiction, but the government does not
need to prove that the defendant knew the property belonged
to the United States. See United States v. Smithen, 213 F.3d
1342, 1344 (11th Cir. 2000) (per curiam). That is true
because § 2114(a)’s purpose is similar to that of § 111: Its
aim is to extend maximum federal protection to a particular
class of individuals, but based on their status as persons
having lawful charge, control, or custody of federal property,
rather than on their status as federal officers. That purpose
would be undermined if the statute required proof of the
defendant’s knowledge of the federal character of the
property involved. And, as with § 111, knowledge of the
jurisdictional fact under § 2114(a) is irrelevant to establishing
the wrongfulness of the defendant’s conduct. An assault with
the intent to rob someone of property is wrongful whether the
property belongs to the federal government or someone else.
Under Feola, because knowledge of the federal character
of the property is not required for conviction of the
substantive offense under § 2114(a), such knowledge is not
required to obtain a conviction under § 371 for conspiring to
commit that offense. (To the extent the Seventh Circuit
adopted a contrary rule in United States v. Salgado, 519 F.3d
411, 415 (7th Cir. 2008), we do not think that rule can be
squared with Feola’s clear holding.) Thus, the government
did not need to prove that Mobley knew the buy money
Agent Palmer had in his custody belonged to the United
States in order to secure a conspiracy conviction under § 371.
AFFIRMED.