964 F.3d 339
5th Cir.2020Background
- Police observed two or three masked men exit an SUV and repeatedly fire into a Mercedes; officer Barcelona saw what appeared to be an AK-style rifle and masks, then pursued the suspects.
- Officers established a perimeter, found two males hiding who initially appeared clothed, then re-emerged partially naked claiming they had been robbed; officers recovered two masks, two firearms, two cellphones, and clothing near a house.
- DNA linked Burden to a firearm and Scott to a phone and a mask; ballistics connected the recovered firearms to the nineteen rounds fired.
- Burden and Scott were indicted under 18 U.S.C. § 922(g)(1) for felon-in-possession; the indictment did not allege they knew of their felon status, though both stipulated at trial that they were felons.
- After a hung jury at the first trial (during which Burden made an admission to the parole board), the court limited any mention of the defendants’ robbery-claim testimony without prior approval; at the retrial the jury convicted both; PSRs cross-referenced the possession to attempted first-degree murder and the court adopted that finding at sentencing.
- On appeal the defendants raised four issues: (1) denial of Scott’s severance motion, (2) Rehaif knowledge-of-status error, (3) the court’s preapproval procedure limiting robbery-related evidence, and (4) the sentencing cross-reference to attempted murder.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Severance / Confrontation (codefendant statement) | Government: Burden’s redacted statement did not mention Scott; limiting instruction cured any risk. | Scott: Redaction + instruction insufficient because other evidence readily linked the statement to him, causing prejudice. | No abuse of discretion; redaction and limiting instruction adequate and other evidence independently linked Scott. |
| Rehaif (knowledge of felon status) | Government: Pre-Rehaif practice applied; defendants didn’t preserve Rehaif objections. | Defs: Rehaif requires proof they knew their felon status; unpreserved error warrants plain-error review. | Court found plain Rehaif error in instructions/indictment but defendants failed to show prejudice; stipulations and parole history made knowledge inferable; conviction stands. |
| Exclusion / Preapproval of robbery-defense evidence | Government: District court’s preapproval requirement was a permissible case-management tool, not an absolute bar. | Defs: The order prevented a plausible defense and was plain error. | No plain error; defendants never sought the court’s approval so cannot show the procedure was abused or prejudicial. |
| Sentencing cross-reference to attempted first-degree murder | Government/PSR: Facts (masks, weapons, armed approach, repeated firing) support premeditation and attempted murder cross-reference. | Defs: Evidence shows a spur-of-the-moment shooting, not premeditation or attempted murder. | No clear error; comparable evidence (masks, arming, approach, repeated firing) supports finding of deliberation/premeditation and attempted murder cross-reference. |
Key Cases Cited
- Richardson v. Marsh, 481 U.S. 200 (redacted codefendant confession may be admitted with limiting instruction)
- Bruton v. United States, 391 U.S. 123 (facially incriminating nontestifying codefendant confession excludes limiting instruction cure)
- Zafiro v. United States, 506 U.S. 534 (Rule 14 severance standards; limiting instructions often suffice)
- Rehaif v. United States, 139 S. Ct. 2191 (mens rea in §924(a)(2) applies to status element in §922(g))
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of the evidence review)
- Rosales-Mireles v. United States, 138 S. Ct. 1897 (plain-error correction discretionary standard)
- Davis v. United States, 140 S. Ct. 1060 (review of unpreserved factual arguments for plain error)
- United States v. Shaw, 701 F.2d 367 (definition of deliberation and premeditation)
- Trottie v. Stephens, 720 F.3d 231 (mask evidence undermines claim of lack of premeditation)
- United States v. Powell, 732 F.3d 361 (Marsh-focused analysis on whether a statement facially implicates a defendant)
- United States v. Chapman, 851 F.3d 363 (limiting instruction effectiveness and prejudice analysis)
- United States v. Huntsberry, 956 F.3d 270 (post-Rehaif discussion of burden to prove knowledge of felon status)
- United States v. Lavalais, 960 F.3d 180 (Rehaif error requires showing actual prejudice)
- United States v. Staggers, 961 F.3d 745 (sufficiency review standards in related §922(g) context)