35 F.4th 366
5th Cir.2022Background
- A conspiracy led by Redrick Batiste targeted armored-car ATM cash deliveries; Batiste (with Hill and Polk) murdered an armored-car driver during a Wells Fargo ATM robbery in August 2016.
- The Task Force (HPD/FBI) surveilled Batiste and intercepted calls; investigations linked Hill, Polk, Scott, Phillips, and Duncan‑Bush to a planned second murder-robbery at an Amegy Bank ATM in December 2016.
- Law enforcement staged a takedown on December 7, 2016; Batiste opened fire and was killed by officers; Hill, Polk, Scott, and Duncan‑Bush were arrested at the scene; Phillips was arrested later the same day (not present at the scene).
- A consolidated indictment charged Hill and Polk with Hobbs Act robbery and §924(c) murder-robbery counts (Wells Fargo) and charged all five with attempted Hobbs Act robbery and §924(c) discharge-of-a-firearm counts (Amegy attempt); Duncan‑Bush pled guilty; the others proceeded to trial.
- After a two‑week jury trial each defendant was convicted on all counts; Hill and Polk received concurrent terms for Hobbs/attempt counts and consecutive life terms on §924(c) counts; Scott and Phillips received 240 months plus a consecutive life term.
- On appeal the Fifth Circuit affirmed all convictions and sentences, rejecting challenges on shackling, courtroom removal, pro se revocation, mistrial/severance, evidentiary rulings, Confrontation Clause claims, sufficiency, crime‑of‑violence status, and a sentencing enhancement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Shackling visible to jury (Hill) | Gov't: Marshals' high‑risk assessment justified restraints; exposure was brief/isolated and not prejudicial. | Hill: Court gave no record reasons; jury likely saw shackles and Due Process violated. | Aff'd: Court did not abuse discretion; exposure (if any) was brief and defendant failed to show actual prejudice. |
| Removal from courtroom (Hill) | Gov't: Removal justified by repeated disruptive behavior after warnings under Allen. | Hill: Removal premature; less drastic alternatives not exhausted; Sixth Amendment violation. | Aff'd: Abuse‑of‑discretion standard; removal after warnings was permissible under Allen. |
| Revocation of pro se status (Hill) | Gov't: Court may terminate self‑representation for serious obstructive misconduct. | Hill: Revocation was premature and unnecessary; conduct was impulsive. | Aff'd: De novo review; revocation proper because conduct was disruptive and could be seen as delay/obstruction. |
| Denial of mistrial / severance after Hill’s outburst (Phillips/Scott) | Gov't: Limiting instructions cured any prejudice; joint trial appropriate. | Phillips: Outburst created incurable prejudice requiring mistrial/severance. | Aff'd: No abuse of discretion; outburst short of rare, incurable events and curative instructions sufficed. |
| Agent Coughlin’s lay testimony interpreting coded wire calls (Phillips) | Gov't: Case agent’s extensive participation qualified him to explain opaque code words; helpful lay opinion. | Phillips: Testimony usurped jury function and went beyond lay foundation. | Aff'd: Abuse‑of‑discretion review; agent’s opinions on opaque, case‑specific code words were admissible. |
| Confrontation Clause re: cellphone extraction reports (Polk, Scott) | Gov't: Extraction reports were raw, machine‑generated data (non‑testimonial) or Coughlin properly testified about curated excerpts he prepared. | Polk/Scott: Reports were testimonial forensic reports; Coughlin did not create/observe original extraction—Clause violation. | Aff'd: Reports treated as machine‑generated non‑testimonial data; in any event Coughlin properly testified to curated excerpts. |
| Sufficiency of evidence for Phillips (Count Three attempt; Count Four §924(c)) | Gov't: Wiretaps, witness testimony, recruitment and facilitation (burner phone, transportation) show substantial steps and advance knowledge of gun. | Phillips: Not at scene; limited communications; insufficient substantial‑step and no advance knowledge of firearm. | Aff'd: De novo review; evidence was sufficient to prove substantial step for attempt and advance knowledge for aiding‑and‑abetting §924(c). |
| Is attempted Hobbs Act robbery a "crime of violence" under §924(c) elements clause? | Gov't: Circuit precedent treats Hobbs Act robbery (and attempt) as a crime of violence. | Defendants: Argue it's not a categorical crime of violence. | Aff'd: De novo review; precedent controls—attempted Hobbs Act robbery qualifies under elements clause. |
| Sentencing enhancement U.S.S.G. §2B3.1(c)(1) for death during offense (Batiste killed by police) | Gov't: Cross‑reference to first‑degree murder applies; even if error, sentence would be same under §3553(a). | Defs: A coconspirator killed by police is not a "victim" for enhancement; agency/proximate‑cause theory dispute. | Aff'd: Any procedural error harmless—district court explained it would have imposed same sentence absent enhancement. |
Key Cases Cited
- Deck v. Missouri, 544 U.S. 622 (2005) (visible restraints implicate presumption of innocence but may be allowed for case‑specific security needs)
- Allen v. United States, 397 U.S. 337 (1970) (defendant may be removed for disruptive conduct after warning)
- Faretta v. California, 422 U.S. 806 (1975) (right to self‑representation; not absolute; may be terminated for obstructionist misconduct)
- Crawford v. Washington, 541 U.S. 36 (2004) (testimonial statements require prior cross‑examination)
- Melendez‑Diaz v. Massachusetts, 557 U.S. 305 (2009) (forensic certificates are testimonial absent live testimony)
- Bullcoming v. New Mexico, 564 U.S. 647 (2011) (analyst who did not perform test cannot testify to its results under Confrontation Clause)
- Rosemond v. United States, 572 U.S. 65 (2014) (aiding‑and‑abetting §924(c) requires advance knowledge of firearm use)
- Zafiro v. United States, 506 U.S. 534 (1993) (strong preference for joint trials; severance required only for specific compelling prejudice)
- United States v. Haines, 803 F.3d 713 (5th Cir. 2015) (limits on lay‑opinion testimony interpreting intercepted communications)
- United States v. Staggers, 961 F.3d 745 (5th Cir. 2020) (case agent may explain case‑specific coded terms)
- United States v. Waguespack, 935 F.3d 322 (5th Cir. 2019) (machine‑generated GPS/cell data treated as non‑testimonial)
- United States v. Maes, 961 F.3d 366 (5th Cir. 2020) (standards for reviewing physical restraints)
- United States v. Banegas, 600 F.3d 342 (5th Cir. 2010) (shackling and requirement to justify restraints on the record)
- United States v. McRae, 702 F.3d 806 (5th Cir. 2012) (severance required where evidence against co‑defendants is highly inflammatory and unrelated)
- United States v. Smith, 957 F.3d 590 (5th Cir. 2020) (attempt to commit a crime of violence qualifies as a crime of violence under §924(c) elements clause)