ISAAC SEABROOKS v. UNITED STATES OF AMERICA
No. 20-13459
United States Court of Appeals for the Eleventh Circuit
May 6, 2022
[PUBLISH]
Before WILSON, ROSENBAUM, Circuit Judges, and CONWAY,* District Judge.
Isaac Seabrooks, a federal prisoner, appeals the district court‘s denial of his timely
I
A. Factual Background
We begin with a description of Seabrooks‘s charges and trial. Because this
In 2014, a federal grand jury returned a two-count indictment that charged Seabrooks and his co-defendant Nigel Butler with one count of being a felon in possession of a firearm and ammunition, in violation of
At trial, the government‘s witnesses testified to the following facts. On July 23, 2014, Butler, who was driving a stolen Cadillac while Seabrooks was in the front passenger‘s seat, pulled into a parking lot in Grapeland Park. As he entered, Butler rolled down his window and parkеd next to a green truck. After another car left the parking lot, Butler exited the Cadillac, broke into the passenger side door of the truck, removed several items, placed them inside the Cadillac, and drove away. Meanwhile, Seabrooks never exited the Cadillac.
Shortly after they left, Butler and Seabrooks returned to the parking lot and remained in the Cadillac. When they tried to leave again, police arrived. The police blocked their exit, ordеred Butler out of the vehicle, and arrested both men outside the Cadillac. After Butler and Seabrooks exited the Cadillac, one of the officers looked inside and saw three firearms. The officer testified that the firearms were located: (1) on the driver‘s side floorboard; (2) on top of a cushioned backrest on the front passenger‘s seat; and (3) between the driver‘s seat and the front passenger‘s seat. The firearm on the front passenger‘s seat was a semi-autоmatic pistol stored in a black gun pouch. The owner of the green truck later confirmed that the firearms were his.
Seabrooks made several statements after his arrest. First, when an officer approached Seabrooks to identify his fingerprints with a portable device, Seabrooks asked about the device. The officer told Seabrooks that the device was for identification and that it would be used to see if Seabrooks touched a gun. Seabrooks responded: “Oh, well, I touched the little gun, Officer . . . . You‘ll find my fingerprints on the small gun.”
Later, during a post-Miranda interview, Seabrooks stated that he took the firearms from Butler and placed them in the console of the Cadillac. Seabrooks explained that Butler handed him a black pouch and that he opened the pouch and noticed it contained a semi-automatic pistol. However, Seabrooks asserted that he “[didn‘t] want no guns around [him], period,” so he put the gun and pouch in the center armrest.
During the same interview, Seabrooks stated that he did not know Butler intended to steal firearms from the green truck. Although Seabrooks acknowledged that he remained in the Cadillac while Butler broke into the truck and handed him firearms, Seabrooks nevertheless contended that he neither got out of the car nor participated in the theft. When an officer informed Seabrooks that he was being charged with being a felon in possession of a firearm, Seabrooks adamantly stated that he did not “possess” any of the firearms because he only incidentally handled one firearm before quickly stowing it away from his person.
After the government presented the foregoing testimony, the prosecutor read a stipulation to the jury. The stipulation explained that both Seabrooks and Butler had been convicted of felony offenses and
At the charge conference, the government requested—and the district court agreed to deliver, over Seabrooks‘s objection—an aiding and abetting instruction. Although the indictment did not charge Seabrooks with aiding and abetting, the government asked the district court whether the aiding and abetting instruction was applicable to both of Seabrooks‘s charges. The district court responded that the government could direct the jury to the instruction on both counts.
The district court‘s aiding and abetting instruction stated:
It is possible tо prove the Defendant guilty of a crime even without evidence that the Defendant personally performed every act charged. Ordinarily, any act a person can do may be done by directing another person or agent or it may be done by acting with or under the direction of others.
A defendant aids and abets another person if the defendant intentionally joins with a person to commit a crime.
A defendant is criminally responsible for the acts of another person if the defendant aids and abets the other person.
A defendant is also responsible if the defendant willfully directs or authorizes the acts of an agent, employee or other associate. But finding that a defendant is criminally responsible for the acts of another person requires proof that the defendant intentionally associated with or participated with the crime, not just proof that the defendant was simply present at the scene of a сrime or knew about it. In other words, you must find beyond a reasonable doubt that the defendant was a willful participant and not merely a knowing spectator.
During closing arguments, the government primarily relied on the aiding and abetting instruction in its rebuttal.1 The prosecutor argued:
Why did they have the window rolled down? So they could communicate, so that you could sit there, peacefully, look another way, look straight ahead, and say: “There‘s some weird lady behind us. Be calm. All right. Go ahead.” That is aiding and
abetting. That‘s why the instruction is there because this story is obvious, and your common sense does not get checked outside that door. He is a lookout. He is helping this crime happen. But folks, the aiding and abetting instruction that you have is only one way of proving this case. There are two ways of proving this case. One is if, when you read the actual possession instruction, and you say: Did he have those guns? Did he really have those guns? Was he just curious? . . .
And I want to be very clear, when you go back to the jury roоm; about the value of that aiding and abetting instruction. One way of proving this case is solely on the actual possession and constructive possession. If you find that that has happened, that the Defendant has actual possession of the gun, the Defendant is guilty. You don‘t have to consider aiding and abetting. But if you,
for whatever reason, have a question about that, you can move on to aiding and abetting, and you can determine did Nigel Butler help -- did Isaac Seabrooks -- excuse me help Nigel Butler commit this crime? And the answer is: Yes.
Following the government‘s rebuttal, the jury began its deliberations. About two and a half hours later, the jury delivered a question to the district court. The jury asked:
Are the following considered the same as possession:
– receipt of item
– touch of item
– physical inspection of item
After consulting with the parties, the district court decided to supplement its original possession instruction with language from United States v. Edwards, 166 F.3d 1362 (11th Cir. 1999), which Seabrooks had previously requested. The district court told the jury:
Ladies and Gentlemen, you alone determine the facts of this case. The Court has instructed you оn the law related to possession. It is contained in the verbatim instructions, but I will read it again. “The law recognizes several kinds of possession. A person may have actual possession, constructive possession, sole possession, or joint possession. Actual possession of a thing occurs if a person knowingly has direct physical control of it. Constructive possession of a thing occurs if a person does not have actual possession of it, but has the рower and the intention to take control of it later. Sole possession of a thing occurs if a person is the only one to possess it. Joint possession of a thing occurs if two or more people share possession of it. The term possession includes actual, constructive, sole, and joint possession.”
You have asked a specific question, and Ladies and Gentlemen of the Jury, mere inspection, standing alone, is not sufficient to establish possession. You have been provided with all the law, and I ask that at
this time you return to the jury room to continue your deliberations.
Thirty-five minutes later, the jury reached a verdict—guilty on both counts. However, the verdict form did not specify whether the jury found Seabrooks guilty on Count 1 because he actually possessed a firearm or because he aided and abetted Butler‘s possession of a firearm.
In 2015, the district court sentenced Seabrooks to 188 months’ imprisonment on Count 1 and 120 months’ imprisonmеnt on Count 2 to run concurrently.2 Seabrooks‘s direct appeal followed.
B. Seabrooks‘s Direct Appeal
Seabrooks contested his convictions and his 188-month sentence on direct appeal. Seabrooks, 839 F.3d at 1332–45. In a published opinion, we affirmed the district court and briefly addressed Seabrooks‘s challenge to the district court‘s aiding and abetting instruction under Rosemond v. United States, 572 U.S. 65 (2014). In Rosemond, the Supreme Court concluded that “an aiding and abetting conviction requires not just an act facilitating one or another element, but also a state of mind extending to the entire crime.”
Id. at 75–76 (explaining that the defendant‘s “intent must go to the specific and entire crime charged“).
Relying on Rosemond, Seabrooks asserted that the district court erred when it
C. Seabrooks‘s § 2255 Motion and Appeal
Seabrooks subsequently filed a timely
While Seabrooks‘s motion was pending before the district court, the Supreme Court issued its opinion in Rehaif v. United States, 139 S. Ct. 2191 (2019). The Rehaif Court held that the government must prove that the defendant “knew he belonged to the relevant category of persons barred from possessing a firearm” in a prosecution under
Seabrooks‘s
Seabrooks objected to the report and recommendation. He argued that the magistrate judge incorrectly applied the standard for a second or successive
Seabrooks timely appealed the district court‘s order on his
Whether Rehaif v. United States, 139 S. Ct. 2191 (2019), applies retroactively to initial
28 U.S.C. § 2255 motions, such that Mr. Seabrooks could overcome the procedural bar that otherwise would apply to Claim 1, as it relates to Count 1, due to the fact that this Court previously decided Claim 1 against Mr. Seabrooks on direct appeal.
In evaluating a district court‘s denial of a
III
Seabrooks‘s appeal raises three issues: (1) whether Rehaif applies retroactively to Seabrooks‘s initial
defaulted; and (3) whether the district сourt‘s error in giving the aiding and abetting instruction was harmless.
A. Rehaif applies retroactively to Seabrooks‘s initial § 2255 motion.
The first issue is whether Rehaif applies retroactively to Seabrooks‘s initial
In the case on appeal, the parties agree that the district court improperly relied on the statutory analysis for a second or
successive
Because Seabrooks‘s conviction is final, he may only rely on a “new rule” announced by the Supreme Court that applies retroactively when challenging his conviction. See Schriro v. Summerlin, 542 U.S. 348, 351 (2004). New substantive rules generally apply retroactively. See id. at 351. New substantive rules include both “decisions that narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the [government‘s] power to punish.” Id. at 351–52 (citations and footnote omitted). Both new rules of statutory law and new rules of constitutional law apply retroactively to an initial
In Rehaif, the Supreme Court held that the government must prove the defendant knew both that he possessed a firearm and that he belonged to a class of persons prohibited from possessing a firearm to sustain a
As the Rehaif rule narrows the scope of
Seabrooks‘s initial
B. Seabrooks‘s Rehaif claim is neither procedurally barred nor procedurally defaulted.
While the government agrees that Rehaif applies retroactively to initial
The terms “procedurally barred” and “procedurally defaulted” have distinct meanings. A procedural bar prevents a defendant from raising arguments in a
intervening change in law. See Davis v. United States, 417 U.S. 333, 342 (1974).
By contrast, a “procedural default” occurs when a defendant raises a new challenge to his conviction or sentеnce in a
In our order granting Seabrooks‘s motion for a certificate of appealability, we asked whether Seabrooks could overcome the procedural bar that otherwisе would apply to his challenge to the aiding and abetting instruction. However, it‘s not clear to us that the government raised this issue or argued that Seabrooks‘s claim is procedurally barred in its appellate brief. But even assuming it adequately did so and that Seabrooks procedurally defaulted his claim that the government had to prove that he knew Butler was a convicted felon, any resulting procedural bar must be excused under Davis v. United States, 417 U.S. 333 (1974), because Rehaif caused an intervening change in the law.
But the government also contends that Seabrooks‘s Rehaif claim is procedurally defaulted beсause he did not challenge his alleged principal liability and personal possession of the firearms on direct appeal. In response, Seabrooks argues that the government
waived this affirmative defense because it failed to raise it before the district court.
We agree that the government waived the affirmative defense of procedural default. See Foster v. United States, 996 F.3d 1100, 1106–07 (11th Cir. 2021) (collecting cases). The government‘s response to Seabrooks‘s
C. The district court‘s error was not harmless.
Turning to the merits of Seabrooks‘s Rehaif claim, the parties agree that the harmless error standard of review applies. The government also seems to agree that the district court‘s aiding and abetting instructiоn was improper under Rehaif because the government failed to present evidence demonstrating that Seabrooks knew Butler was a convicted felon at the time of the offense during Seabrooks‘s trial. Nevertheless, the government argues that the
district court‘s error was harmless because “the record amply supports” Seabrooks‘s conviction on the basis of principal liability.
We recently considered whether instructing a jury “on a constitutionally invalid predicаte as one of several potential alternative predicates” was harmless. See Granda v. United States, 990 F.3d 1272, 1292 (11th Cir. 2021). In Granda, we explained that relief under the harmless error standard is only proper if we have “grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury‘s verdict.” Id. (quoting Davis v. Ayala, 576 U.S. 257, 267–68 (2015)) (internal quotation marks omitted). Specifically, there “must be more than a reasonable possibility” that the error was harmful. Id. (quoting Davis, 576 U.S. at 267–68). In other words, we may only order relief if the error “rеsulted in actual prejudice.” Id. (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)) (internal quotation marks omitted).
As the reviewing court, we must “ask directly” whether the district court‘s error substantially influenced the jury‘s verdict in Seabrooks‘s case. Id. at 1293 (quoting O‘Neal v. McAninch, 513 U.S. 432, 436 (1995)). Upon review of the record, we have grave doubt about whether the Rehaif error led to Seabrooks‘s felon-in-possession conviction. Id. at 1294 (explaining that it is proper to review the record to determine “whether the jury instead (or also) found the defendant guilty under a valid theory“).
From the outset, the government‘s principal liability evidence was weak. For that reason, the government offеred aiding
and abetting as an alternative theory of liability—despite the fact that Seabrooks was not charged with aiding and abetting in the indictment. After the district court gave the aiding and abetting instruction over Seabrooks‘s objection, the government directed the jury‘s attention to “the value” of the instruction, emphasizing that the instruction was available to the jury if it had “a question” about Seabrooks‘s actual possession.
The record suggests that the jury followed the government‘s guidance precisely. After two and a half hours of deliberations, the jury asked a question related to Seabrooks‘s principal liability; specifically, whether certain actions—receipt of item, touch of item, physical inspection of item—constitute possession. In response, the district court informed the jury that mere inspection, standing alone, is not sufficient to establish possession. Thirty-five minutes later, the jury reached a guilty verdict on both counts.
Although the verdict did not specify whether the jury considered only principal liability, we conclude that there is more than a reasonable possibility that the jury‘s conviction relied on the invalid aiding and abetting instruction. It is likely that the jury listened to the government‘s guidance, asked a question about Seabrooks‘s principal liability, received an answer suggesting Seabrooks could not be convicted under that theory, opted for the aiding and abetting instruction, and convicted Seabrooks based on that theory of liability. As a result, we have grave doubts about whether the district court‘s error substantially influenced the jury‘s
verdict, and thus we find the error actually prejudiced Seabrooks, and cannot be deemed harmless.
IV
In conclusion, we hold that Rehaif applies retroactively to Seabrooks‘s initial
REVERSED, VACATED, and REMANDED.
Notes
He possessed, controlled all of those guns. He placed those guns into the car. He received them from his codefendant, and I would suggest to you that he aided -- not only did he possess the firearms, but he aided and abetted Nigel Butler in stealing those firearms and in possessing those firearms. We know those guns were stolen, we know that he possessed them, and we know that he aided Nigel Butler because he assisted him in that robbery. . . .
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.