945 F.3d 245
5th Cir.2019Background
- July 24–25, 2017: Houston police surveilled a phone (ending 6601) attributed to Walter Jordan and observed Jordan driving a maroon Jetta; the same phone and vehicles later converged near First Community Credit Union in Cinco Ranch.
- Four vehicles (a Toyota Tundra, Nissan Rogue, Jetta, and Malibu) operated in formation; occupants of the Tundra entered the credit union, jumped over the teller counter, demanded money, brandished a firearm, struck an employee, and fled.
- Officers pursued the Tundra; occupants fled on foot after a high-speed chase; firearms, gloves, hoodies, and the credit union’s bait bills were recovered from the Tundra and from an apartment tied to Jordan’s brother.
- Co-defendants Daryl Anderson and Jaylen Loring pled guilty and testified that Jordan organized the robbery and drove the Tundra; signals/phone records linked the 6601 phone to in-call activity during the robbery and to phones found on co-defendants.
- Jordan was convicted of aiding-and-abetting aggravated credit union robbery and aiding-and-abetting brandishing a firearm under § 924(c); sentenced to a total of 326 months. Wise was convicted of aiding-and-abetting aggravated credit union robbery and sentenced to 121 months (after firearm enhancement).
- Both appealed, raising challenges to sufficiency of the evidence, admission of testimony identifying Jordan and Wise as brothers, admission of co-defendants’ guilty-plea testimony, (Wise) failure to give a Rosemond instruction, firearm sentencing enhancement, and role-reduction denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Sufficiency of evidence (Jordan) | Jordan: evidence was only circumstantial, witnesses were incredible, no physical ID/DNA linking him. | Government: co-defendants’ testimony plus phone/location, clothing, bait bills, and guns suffice. | Conviction affirmed; testimony of Anderson and Loring plus circumstantial evidence was sufficient. |
| 2. Testimony that Jordan and Wise are brothers (Jordan) | Jordan: officer lacked foundation and testimony was prejudicial. | Government: any error harmless because strong independent evidence of guilt. | Any error forfeited by government; in any event harmless. |
| 3. Admission of co-defendants’ guilty pleas (Jordan) | Jordan: admission prejudiced jury. | Government: pleas properly disclosed and served impeachment/credibility purpose; limiting instruction given. | No plain error; admission permissible and not prejudicial. |
| 4. Sufficiency of evidence (Wise) | Wise: only presence shown; no proof he aided/abetted or knew guns would be used. | Government: movement between cars, conference calls, phone in his seat, and proximity to robbery support participation and foreseeability. | Conviction affirmed; circumstantial evidence sufficient to infer participation and knowledge. |
| 5. Testimony that Jordan and Wise are brothers (Wise) | Wise: relationship evidence prejudicial. | Government: any error harmless given independent evidence. | Any error harmless; evidence of guilt independent of kinship testimony. |
| 6. Failure to give Rosemond instruction (Wise) | Wise: jury should have been instructed that advance knowledge of firearm is required for §924(c)-type liability. | Government: Rosemond’s applicability in this context unsettled; no plain error. | No plain error; law unsettled in circuit, so omission not clearly erroneous. |
| 7. Firearm Guideline enhancement (Wise) | Wise: use of firearm was not foreseeable; at most brandishing (5-level), not "otherwise use" (6-level). | Government: conference calls, role, recovered guns and violent nature of credit-union robbery made firearm use foreseeable; guns were pointed. | No clear error; six-level "otherwise used" enhancement upheld. |
| 8. Role-reduction (Wise) | Wise: minimal or minor participant; mere passenger/lookout deserving 2–3 point reduction. | Government: Wise’s movement between vehicles, communications, and placement with uninformed driver show non-minimal role. | No clear error; district court reasonably declined role reduction. |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (establishes standard for sufficiency review)
- Rosemond v. United States, 572 U.S. 65 (advance-knowledge rule for aiding-and-abetting §924(c) liability)
- Puckett v. United States, 556 U.S. 129 (plain-error review requirements)
- Olano v. United States, 507 U.S. 725 (harmless/plain-error framework)
- United States v. Vargas-Ocampo, 747 F.3d 299 (5th Cir. en banc sufficiency review precedent)
- United States v. Bermea, 30 F.3d 1539 (co-conspirator testimony may suffice even if from cooperating witness)
- United States v. Burton, 126 F.3d 666 (sentencing accountability for firearm use reasonably foreseeable in bank robberies)
- United States v. Dunigan, 555 F.3d 501 (distinction between brandishing and otherwise using a firearm)
- United States v. El-Mezain, 664 F.3d 467 (harmless-error where other evidence supports same inferences)