614 F. App'x 303
6th Cir.2015Background
- Raynard Crowe and Alfred Wingate were convicted after a joint jury trial for a series of robberies (a bank and two pharmacies) and multiple firearms and weapons offenses, receiving 535-month and 684-month sentences respectively.
- Evidence included surveillance video, witness identifications, cash found on Crowe and deposits by Wingate’s fiancée, and a 911 call recording; Wingate’s counsel conceded Wingate’s role in one robbery during closing argument.
- Indictment charges included bank robbery (18 U.S.C. § 2113), pharmacy robbery (18 U.S.C. § 2118), multiple § 924(c) firearm counts (including enhanced/ consecutive penalties), § 922(g) felon-in-possession counts, and related conspiracies.
- Crowe was acquitted of one pharmacy robbery count; both defendants appealed multiple issues: Confrontation/Bruton claim, Commerce Clause challenge to § 2118, ineffective assistance (Wingate), failure to submit “brandishing” to the jury, and constitutionality of consecutive § 924(c) enhancements under Alleyne.
- The district court had refused to dismiss the pharmacy counts and instructed the jury that counsel’s statements were not evidence; the Sixth Circuit affirmed all convictions and sentences.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Confrontation/Bruton (Crowe) — counsel admission that Wingate confessed to Ferndale robbery | Crowe: closing argument by Wingate’s counsel amounted to a nontestifying codefendant statement implicating Crowe, violating Confrontation Clause/Bruton | Government/Wingate: statement was counsel argument (not testimonial/evidence) and did not implicate Crowe | Affirmed — no Bruton violation: counsel statements are not testimonial and the remark did not implicate Crowe |
| Commerce Clause challenge to 18 U.S.C. § 2118(a)(1) (Crowe) | Crowe: criminalizing intrastate pharmacy robberies of controlled substances exceeds Congress’s Commerce Clause power | Government: theft of controlled substances is economic and § 2118 is part of a comprehensive regulatory scheme affecting interstate market in drugs | Affirmed — statute valid as applied: rational basis to conclude aggregated intrastate thefts affect interstate commerce (Raich framework) |
| Ineffective assistance of counsel (Wingate) | Wingate: trial counsel failed to move to suppress identification and failed to meaningfully cross-examine witnesses, causing prejudice | Government: record does not establish deficient performance or prejudice; many choices may reflect trial strategy | Dismissed on direct appeal — record inadequate to adjudicate Strickland; leave for post-conviction proceedings |
| Failure to submit “brandishing” element and consecutive § 924(c) enhancements (both defendants) | Defendants: district court erred by not submitting brandishing to jury (Alleyne) and by imposing consecutive enhanced § 924(c) sentences for counts in same indictment | Government: error as to brandishing is plain but harmless beyond reasonable doubt; Alleyne does not require jury finding for prior-conviction exception so consecutive § 924(c) enhancements are permissible | Affirmed — brandishing omission harmless (overwhelming evidence of brandishing); consecutive § 924(c) enhancements allowed under precedent and Alleyne’s prior-conviction exception |
Key Cases Cited
- Bruton v. United States, 391 U.S. 123 (1968) (Confrontation/Bruton rule for nontestifying codefendants)
- Gonzales v. Raich, 545 U.S. 1 (2005) (Commerce Clause: regulation of intrastate economic activity as part of comprehensive scheme)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-part ineffective-assistance standard)
- Alleyne v. United States, 133 S. Ct. 2151 (2013) (jury must find facts that increase mandatory minimums, with prior-conviction exception noted)
- Wickard v. Filburn, 317 U.S. 111 (1942) (aggregate-effects principle under Commerce Clause)
- Neder v. United States, 527 U.S. 1 (1999) (harmless-error standard for omitted elements)
- Massaro v. United States, 538 U.S. 500 (2003) (ineffective-assistance claims generally for collateral review)
- Deal v. United States, 508 U.S. 129 (1993) (allowing consecutive § 924(c) sentences from same indictment under prior precedent)
- Mack v. United States, 729 F.3d 594 (6th Cir. 2013) (brandishing must be found by jury; omission reviewed for harmless error)