68 F.4th 402
8th Cir.2023Background
- Early-morning July 31, 2018 home invasion in Lincoln, Nebraska: three masked intruders bound occupants; Jessica Brandon was shot and later died. High-quality, password‑protected surveillance system recorded activity before and during the intrusion.
- Investigators recovered 12 casings on the basement stairs, found ~10 pounds of marijuana in an outbuilding, drug paraphernalia, and $85,800 cash (bundles tested positive for THC residue).
- Tips and surveillance led police to suspects Tawhyne Patterson and Damon Williams; search warrants executed in Lincoln and in Killeen, Texas recovered clothing, a glove with Damon’s DNA, a phone, and boots.
- Patterson and Damon were tried and convicted on multiple federal counts: Count One (924(j) murder during attempted Hobbs Act robbery), Counts Two/Three (attempted Hobbs Act robbery), and Count Five (18 U.S.C. §924(o) firearms conspiracy). District court sentenced life on Count One plus concurrent 240‑month terms on other counts.
- On appeal, defendants challenged suppression rulings (Texas and Nebraska warrants), evidentiary rulings (selfie video; 911 recording; prosecutor’s closing remarks), sufficiency of the evidence, and the effect of the Supreme Court’s United States v. Taylor decision on Count One and Count Five. The panel vacated Count One, affirmed remaining convictions, vacated sentences for resentencing, and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of Killeen (Texas) search warrant | Government: affidavit and McPherson’s presentation provided probable cause to search Patterson’s Texas residence. | Patterson/Damon: affidavit contained drafting errors, misidentified affiant, and reckless inaccuracies undermining probable cause and showing judge was a rubber stamp. | Denied suppression. Court found judge read affidavit, errors were technical/immaterial, and affidavit provided probable cause. |
| Franks hearing / Lincoln (Nebraska) warrant | Government: affidavit statements (vehicle description; ID similarity) were supported and corroborated. | Patterson: affidavit included false or reckless statements (vehicle color/doors, mischaracterized ID similarity) that were necessary to probable cause. | No Franks hearing. Court held defendants failed to show intentional/reckless falsity or that disputed statements were necessary for probable cause. |
| Admission of selfie‑style video & 911 recording; prosecutor’s closing | Government: video relevant to firearms conspiracy (knowledge/intent); 911 admissible as excited utterance; prosecutor’s remarks curable. | Defendants: video irrelevant and unfairly prejudicial; 911 emotional and prejudicial; prosecutor’s appeal-to-victims comment warranted mistrial. | Admission upheld. Video and 911 were admissible; Rule 403 balance favored admissibility; prosecutor’s remark was improper but curable and not materially prejudicial given record and court’s curative actions. |
| Sufficiency of evidence / motion for acquittal (Damon) | Government: testimony, surveillance IDs, GSR and clothing links placed Damon at scene. | Damon: no direct evidence placing him at house on July 31; alternative ID arguments (sweatshirt color). | Denied. Court found overwhelming evidence a reasonable jury could rely on to convict Damon beyond a reasonable doubt. |
| Effect of United States v. Taylor on Count One and Count Five; sentencing consequences | Government: Taylor requires vacating Count One only; Count Five stands (guns conspiracy also tied to drug‑trafficking predicate); request resentencing under sentencing‑package doctrine. | Defendants: Taylor voids Count One and undermines Count Five because one §924(c) predicate (attempted Hobbs Act robbery) is no longer a crime of violence. | Vacated Count One (remanded to dismiss). Count Five affirmed by majority; sentences vacated under sentencing‑package doctrine and remanded for resentencing. (Concurring judge dissented as to Count Five and would vacate it because a general verdict may have rested on the invalid Hobbs Act predicate.) |
Key Cases Cited
- United States v. Taylor, 142 S. Ct. 2015 (2022) (attempted Hobbs Act robbery is not a "crime of violence" under §924(c))
- Franks v. Delaware, 438 U.S. 154 (1978) (standard for obtaining evidentiary hearing to challenge false statements in warrant affidavit)
- Hedgpeth v. Pulido, 555 U.S. 57 (2008) (general verdicts may be vulnerable when jury was instructed on alternative theories and one is invalid)
- United States v. Jones, 39 F.4th 523 (8th Cir. 2022) (application of Taylor to conspiracy predicates under §924(c))
- United States v. McArthur, 850 F.3d 925 (8th Cir. 2017) (sentencing package doctrine; vacatur and resentencing principles)
- United States v. Bell, 573 F.2d 1040 (8th Cir. 1978) (standards for evaluating co‑conspirator evidence at sentencing/admissibility stages)
- United States v. Reed, 48 F.4th 1082 (9th Cir. 2022) (§924(c) convictions and when dual predicates are inextricably intertwined)
- United States v. Cannon, 987 F.3d 924 (11th Cir. 2021) (same—when robbery and drug‑trafficking predicates are inextricably intertwined)
- United States v. Hyten, 5 F.3d 1154 (8th Cir. 1993) (affiant technical errors in affidavits do not automatically invalidate probable cause)
- United States v. Decker, 956 F.2d 773 (8th Cir. 1992) (examples of issuing judge abandoning impartial role when failing to read warrant application)