998 F.3d 813
8th Cir.2021Background
- March 23, 2018: two masked men robbed Penn‑Wood Market at gunpoint; store sold goods that had moved in interstate commerce.
- A gray Nissan fled; it struck other cars and crashed; Farah was captured running and Spencer was found on a garage roof; a ripped black plastic bag with cash was recovered nearby.
- Police searched the Nissan (Spencer’s friend owned the car): Farah’s driver’s license was in the driver‑side door compartment; Spencer’s phone was on the passenger‑side floor.
- Both defendants were charged with Hobbs Act robbery (18 U.S.C. § 1951) and brandishing a firearm during a crime of violence (18 U.S.C. § 924(c)); both convicted by a jury.
- Pretrial/jail calls: Spencer urged the car owner not to “tell on” him and to consider “pleading the Fifth.” At trial the defendants objected to the jury instruction only on mens rea grounds; the court added “knowingly.” No objections were made to several prosecution remarks during closing.
- Sentencing: district court applied a two‑level obstruction enhancement (U.S.S.G. § 3C1.1) to Spencer and a two‑level reckless‑endangerment‑during‑flight enhancement (U.S.S.G. § 3C1.2) to Farah; both appeals followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jury instruction: interstate‑commerce element for Hobbs Act robbery | Spencer/Farah: instruction failed to make clear Hobbs Act requires effect on interstate commerce | Government: defendants forfeited objection; evidence showed the store sold goods that moved in interstate commerce | Forfeiture; plain‑error review fails — no reasonable probability of a different verdict; affirmed |
| Prosecutorial misconduct during closing | Defendants: prosecutor vouched, implied facts outside record (e.g., Mohamed might be dead/missing), and told jurors they weren’t missing evidence | Government: no contemporaneous objection; plain‑error standard; evidence against defendants was overwhelming | Plain‑error review fails — no reasonable probability outcome affected; affirmed |
| Spencer § 3C1.1 obstruction enhancement | Spencer: advising someone to plead the Fifth is protected and not obstruction; district court erred in finding purpose to conceal | Government: McMannus supports enhancement where advice is meant to conceal; Spencer’s calls and warnings show purpose to hide involvement | Enhancement affirmed; district court did not clearly err finding purpose to conceal |
| Farah § 3C1.2 reckless‑endangerment (flight) enhancement | Farah: district court clearly erred in finding he was the driver and thus responsible for reckless flight | Government: circumstantial evidence (Farah’s license in driver‑door compartment, Spencer’s phone on passenger floor, Farah licensed to drive, Spencer unlicensed, and flight behavior) shows Farah likely driver | Enhancement affirmed; district court did not clearly err that Farah was driver |
Key Cases Cited
- United States v. Poitra, 648 F.3d 884 (8th Cir. 2011) (standard for reviewing jury instructions)
- United States v. Fast Horse, 747 F.3d 1040 (8th Cir. 2014) (forfeiture vs. plain‑error review of instructions)
- United States v. Weckman, 982 F.3d 1167 (8th Cir. 2020) (tendering an alternative instruction does not preserve an unasserted objection)
- United States v. Dobbs, 449 F.3d 904 (8th Cir. 2006) (robbery of an establishment that deals in goods that moved in interstate commerce satisfies Hobbs Act commerce element)
- United States v. McMannus, 496 F.3d 846 (8th Cir. 2007) (advising another to conceal wrongdoing can support a § 3C1.1 obstruction enhancement)
- United States v. Pierce, 388 F.3d 1136 (8th Cir. 2004) (affirming § 3C1.2 enhancement where defendant struck multiple cars while fleeing)
- United States v. Never Misses A Shot, 715 F.3d 1048 (8th Cir. 2013) (permitting consideration of arrest records in sentencing factfinding)
- United States v. Callahan, 800 F.3d 422 (8th Cir. 2015) (explaining reasonable‑probability showing required under plain‑error review)