991 F.3d 630
5th Cir.2021Background
- Two attempted/actual armored-truck robberies in New Orleans: Oct. 11, 2015 (successful armored-truck robbery) and May 31, 2017 (attempted robbery resulting in a death). Jerome and Armstead Kieffer were charged; Deltoine Scott pleaded and testified for the Government.
- Jerome was convicted of conspiracy, armed bank robbery, brandishing under §924(c), attempted armed bank robbery resulting in death, and §924(j) homicide. Armstead was convicted of conspiracy, attempted armed bank robbery resulting in death, §924(j), making a material false statement to the grand jury, and being a felon in possession under §922(g).
- The Government presented extensive evidence (surveillance, phone data, exhibits) and Scott’s eyewitness testimony identified the Kieffers as participants.
- During trial jurors submitted ~50 written questions; the district court initially asked juror questions without allowing counsel to review them, later permitting counsel to review and object before questions were asked.
- Defendants moved for acquittal and for a new trial (claiming juror-question procedure prejudiced them); motions denied. Sentences: life imprisonment. Defendants appealed arguing (inter alia) insufficient evidence, juror-question error, Rehaif challenge to §922(g), and Davis/Reece challenge to the §924(c) conviction.
- The Fifth Circuit AFFIRMED: sufficiency challenges failed (uncorroborated coconspirator testimony can suffice), no prejudice from juror-question procedure, Armstead’s Rehaif-based §922(g) challenge failed (he stipulated to felon status), and Jerome’s §924(c) conviction rested solely on armed bank robbery (a crime of violence).
Issues
| Issue | Government's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence (identification/participation) | Scott’s testimony plus corroborating exhibits sufficed to convict. | Jerome/Armstead: convictions rest only on Scott’s unreliable testimony. | Affirmed: uncorroborated coconspirator/witness testimony may sustain conviction if not incredible or impossible. |
| Grand-jury false-statement (Armstead) | Phone records show a call at ~4:30 p.m.; statement denying knowledge was false and material. | Armstead: he may have honestly not recalled the call. | Affirmed: jury could find falsity and materiality beyond reasonable doubt. |
| §922(g) (Rehaif) — mens rea to know felon status (Armstead) | Armstead stipulated to being a felon; sufficiency satisfied. | Armstead: Government failed to prove he knew he was a felon when possessing firearms. | Affirmed: stipulation established felon status; claim fails even under de novo review. |
| Juror-questions procedure / new trial | Court followed permissible practice (asked questions itself; later allowed counsel review); no juror abandonment or prejudicial questions identified. | Kieffers: district court erred by posing juror questions without counsel review and jurors became inquisitorial. | Affirmed: no abuse of discretion; no identified prejudicial juror question; volume alone not reversible. |
| §924(c) predicate ambiguity after Davis/Reece (Jerome) | Jerome’s §924(c) conviction was predicated solely on armed bank robbery (a crime of violence). | Jerome: conviction ambiguous between §2113 bank robbery (crime of violence) and §371 conspiracy (not a crime of violence), so Davis/Reece voids §924(c) conviction. | Affirmed: no ambiguity — predicate was armed bank robbery; Reece/Davis inapplicable. |
Key Cases Cited
- United States v. Davis, 139 S. Ct. 2319 (2019) (struck §924(c)(3)(B) as unconstitutionally vague)
- United States v. Reece, 938 F.3d 630 (5th Cir. 2019) (held bank robbery under §2113 is a crime of violence for §924(c))
- Rehaif v. United States, 139 S. Ct. 2191 (2019) (Government must prove defendant knew his status barred firearm possession under §922(g))
- United States v. Bermea, 30 F.3d 1539 (5th Cir. 1994) (uncorroborated coconspirator testimony can support conviction unless incredible or insubstantial)
- United States v. Callahan, 588 F.2d 1078 (5th Cir. 1979) (district court has discretion to handle juror questions; no abuse where judge asked a juror question after finding it proper)
- United States v. Rawlings, 522 F.3d 403 (D.C. Cir. 2008) (recommended procedural safeguards for juror questioning: written submission, court review with counsel, judicial framing and jury instructions)
- United States v. Staggers, 961 F.3d 745 (5th Cir. 2020) (addressed standard of review for unpreserved Rehaif-related sufficiency claims; discussed in concurrence/debate on preservation and de novo vs. plain error review)