United States v. Alfred Wisher
22-10447
11th Cir.Apr 12, 2023Background
- Alfred Wisher was convicted in federal court of multiple offenses including three counts of being a felon in possession of a firearm, carjacking, attempted Hobbs Act robbery, two §924(c) counts (brandishing/use of a firearm), and related conspiracies; the district court imposed a 640‑month sentence that included an 84‑month consecutive term for Count 7 (§924(c)).
- At trial the government introduced Wisher’s prior New York armed‑robbery convictions over Wisher’s Rule 404(b) objection; the court also refused Wisher’s requested justification (duress/self‑defense) jury instruction.
- Wisher moved for a new trial, renewing his objections to the prior‑conviction evidence and the omitted instruction; the district court denied the motion.
- While the appeal was pending, the Supreme Court decided United States v. Taylor, which held attempted Hobbs Act robbery is not a §924(c) “crime of violence.”
- The government acknowledged Taylor’s effect on Count 7; the Eleventh Circuit vacated Wisher’s Count 7 conviction and the 84‑month sentence and remanded for resentencing on the remaining counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of prior New York armed‑robbery convictions (Fed. R. Evid. 404(b)) | Government: prior convictions admissible to prove intent/knowledge, not propensity | Wisher: convictions were unfairly prejudicial and offered only to show criminal propensity | Admitted: convictions were relevant to intent, probative value not substantially outweighed by prejudice; limiting instructions reduced prejudice |
| Refusal to give a justification (duress/self‑defense) jury instruction | Government: Wisher failed to proffer sufficient evidence to meet elements of justification | Wisher: fear of co‑defendant (gun placed in lap) supported instruction | Refused: Wisher did not meet preponderance standard; no evidence of an imminent threat, reasonable alternative, or causal nexus; he acted recklessly by arming co‑defendant and driving to target |
| Denial of motion for new trial | Government: trial was fair; evidence of guilt was overwhelming | Wisher: cumulative errors (404(b) admission, missing justification instruction) warrant new trial | Denied: no abuse of discretion; evidence supports verdict and errors not shown to create miscarriage of justice |
| Validity of §924(c) conviction (Count 7) based on attempted Hobbs Act robbery | Government (on appeal): acknowledged Taylor bars using attempted Hobbs Act robbery as §924(c) predicate | Wisher: sought relief vacating Count 7 | Vacated and remanded: per Taylor, attempted Hobbs Act robbery is not a §924(c)(3)(A) crime of violence; Count 7 conviction and sentence vacated; remand for resentencing on remaining counts |
Key Cases Cited
- United States v. Taylor, 142 S. Ct. 2015 (U.S. 2022) (held attempted Hobbs Act robbery is not a §924(c) crime of violence)
- United States v. Ellisor, 522 F.3d 1255 (11th Cir. 2008) (Rule 404(b) is a rule of inclusion; extrinsic evidence admissible unless only shows propensity)
- United States v. Ramirez, 426 F.3d 1344 (11th Cir. 2005) (three‑part test for admissibility of other‑crimes evidence under Rule 404(b))
- United States v. Dickerson, 248 F.3d 1036 (11th Cir. 2001) (prior convictions probative when extrinsic offense requires same intent as charged offense)
- United States v. Deleveaux, 205 F.3d 1292 (11th Cir. 2000) (elements required to prove justification defense in §922(g) context)
- Dixon v. United States, 548 U.S. 1 (U.S. 2006) (discussing affirmative justification defenses)
- United States v. Fowler, 749 F.3d 1010 (11th Cir. 2014) (when a conviction is vacated, remand for resentencing on remaining counts is appropriate to ensure sentencing coherence)