United States of America v. Cedric Antonio Wright
No. 19-3190
United States Court of Appeals For the Eighth Circuit
April 16, 2021
Submitted: December 18, 2020
Appeal from United States District Court for the Northern District of Iowa - Cedar Rapids
Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.
Cedric Antonio Wright was arrested after he robbed a cellphone store. The car used during the robbery had been stolen by a carjacker the previous day. Wright‘s involvement in the robbery thus implicated him in the carjacking, as well as several firearm counts. He pleaded guilty to Hobbs Act robbery and conspiracy to commit Hobbs Act robbery. See
Wright moved for a judgment of acquittal and a new trial, arguing that there was insufficient evidence to support the verdicts and that the district court gave erroneous jury instructions and made erroneous evidentiary rulings. The district court1 denied both motions. At sentencing, the district court enhanced Wright‘s sentence pursuant to U.S.S.G. §§ 2K2.1(b)(1)(A) and 2B3.1(b)(5). On appeal, Wright argues that the district court erred by (1) denying his motion for a new trial, (2) denying his motion for a judgment of acquittal, and (3) applying the sentencing enhancements. We affirm.
I. Background
JB, who was driving a black Honda, had her car stolen from her at gunpoint in Cedar Rapids, Iowa, on October 22, 2017. JB identified the attacker as a black male wearing a black mask and camouflage. The attacker had pointed a black handgun at
The day after the carjacking, JB‘s mother used a cellphone location app to locate JB‘s stolen phone. The app located JB‘s phone at 12th Avenue and 15th Street SE in Cedar Rapids. The same day, Wright visited a friend, Gage Rupp, at a residence located two doors away from that address. This was the home of Cecilia Givens, Rupp‘s girlfriend.
While Wright was there, Rupp asked Derek Ford to pick him up at Givens‘s home. When Ford arrived in his white van, Rupp and Wright both entered the van. Wright told Ford to drive across town so they could “use [his] sister‘s car.” Trial Tr., Vol. 2, at 143:8–9, United States v. Wright, No. 1:18-cr-00015-LTS-MAR-1 (N.D. Iowa 2019), ECF No. 282. What he called his “sister‘s car” was actually JB‘s stolen Honda. Wright, Rupp, and Ford got into the Honda, and Ford then drove them to a Sprint cellphone store in Cedar Rapids.
As the store was closing, Wright and Rupp exited the car. Ford stayed in the car while Wright and Rupp robbed the store. Security cameras captured Wright entering the store with his hand in the air, while Rupp kept his hand around his waistband. The security footage did not show a gun. A Sprint employee was the only person in the store at the time. He later testified that he “could not say for certain that there was a gun in [either of their] hand[s],” but that Wright and Rupp were “carrying themselves in a way that they had one.” Trial Tr., Vol. 1, at 87:9–10, 21–22, United States v. Wright, No. 1:18-cr-00015-LTS-MAR-1 (N.D. Iowa 2019), ECF No. 281. Wright and Rupp soon emerged from the store with stolen phones, including a “bait” phone that allowed the police to track them.
Ford testified that when Wright and Rupp got back into the Honda, Rupp said it was “sweet” that they did not need to use a gun. Trial Tr., Vol. 2, at 150:8. Wright then revealed that the Honda was stolen and instructed Ford to drive back to Ford‘s van. After they reentered Ford‘s van and attempted to flee, the police stopped them. Ford testified that as he stopped the van for the police, Wright took out a handgun and told Ford to stow it away inside the van. When Ford refused, Wright tossed the gun towards the front of the van, where it landed behind the driver‘s seat. Police recovered a loaded black Smith & Wesson .40-caliber handgun from the floor of the van, as well as cash and cellphones—valued at over $38,000—that had been taken from the store.
Wright eventually admitted his involvement in the robbery but denied involvement in the carjacking and firearms offenses.
After determining that the car used in the robbery was JB‘s car, police informed JB‘s family. JB used an app called “MobilePatrol” to try to identify the person who carjacked her. “MobilePatrol” displays pictures of people who were recently arrested. JB found Wright on the app and asked her mother if he was involved in the Sprint store robbery. Her mother confirmed that he was. Around the same time, JB saw a news story stating that two people were arrested in connection with the robbery. The story featured pictures of Rupp, who is white, and Wright, who is black. A few days later, police presented JB with a photo line-up that included a photo of Wright. It did not include a photo of Ford, who is also black. JB identified Wright as the carjacker.
Investigators discovered that shortly after the carjacking, someone attempted to
Wright‘s Facebook account contained a photo of him wearing camouflage shorts, several photos of a black Smith & Wesson handgun, a video of Wright holding a black handgun and counting cash, a photo of a black male wearing a black ski mask and holding cash, photos of Wright holding a partially silver handgun, and a photo of Wright holding one gun with three more guns at his feet. His Facebook entries also contained conversations in which Wright discussed the Smith & Wesson handgun and indicated that he wanted to trade it, writing that he had a “40 for trade.” Government‘s Trial Ex. 16, at 1, United States v. Wright, No. 1:18-cr-00015-LTS-MAR-1 (N.D. Iowa 2019), ECF No. 185-25. In one conversation regarding the gun, El-Amin said to Wright, “Let me know before you do anything wit that b**ch.” Id. at 2.
Wright was charged with carjacking, in violation of
Wright pleaded guilty to counts 5 and 6, but he proceeded to trial on counts 1, 2, 3, and 7. Regarding count 3, the parties stipulated that Wright was a “prohibited” person within the meaning of
Wright moved for a judgment of acquittal, arguing that there was insufficient evidence to sustain any of the jury‘s verdicts. He also moved for a new trial, arguing that (1) the guilty verdicts were against the weight of the evidence; (2) the district court erroneously instructed the jury regarding the “intent” requirement for carjacking under
The district court rejected both motions. It concluded that (1) there was sufficient evidence to sustain each conviction; (2) even under the “more lenient standards for a motion for new trial,” Wright failed to show that the verdicts were against the weight of the evidence, Order Den. Mot. Acquittal at 10, United States v. Wright, No. 1:18-cr-00015-LTS-MAR-1 (N.D. Iowa 2019), ECF No. 219; (3) its jury instructions properly stated the law as articulated by the Supreme Court and Eighth Circuit;3 and (4) it did not err in admitting the challenged government exhibits.
Wright timely appeals. On appeal, he argues that the district court erred by (1) denying his motion for a new trial based on its erroneous admission of prejudicial government exhibits and erroneous jury instructions; (2) denying his motion for a judgment of acquittal based on sufficiency of the evidence; and (3) imposing sentencing enhancements pursuant to
II. Discussion
A. Admissibility of Government Exhibits at Trial
We review the district court‘s evidentiary rulings for an abuse of discretion, giving “great deference to the district court‘s balancing of the probative value and prejudicial impact of the evidence.” United States v. Huyck, 849 F.3d 432, 440 (8th Cir. 2017) (quotation omitted).
Generally, relevant evidence is admissible at trial.
Under Rule 404(b), evidence of wrongful conduct other than the specific conduct at issue is only admissible in certain circumstances.
Rule 404(b) does not apply, however, to evidence of other wrongful conduct if that evidence is intrinsic to the charged offense. United States v. Brooks, 715 F.3d 1069, 1076 (8th Cir. 2013). Evidence of other wrongful conduct is intrinsic when it is offered to “provide[] the context in which the charged crime occurred” and “complete[] the story or provide[] a total picture of the charged crime.” Id. (quotation omitted); see also United States v. Phelps, 168 F.3d 1048, 1057 (8th Cir. 1999) (“Bad acts that form the factual setting of the crime in issue or that form an integral
Wright argues that the district court abused its discretion in admitting government exhibits 14, 16, 17, 21, and 29–32. We address his arguments in turn.
1. Exhibit 14
Exhibit 14 is a photo from Wright‘s Facebook account of a black male with arm tattoos wearing a black mask and holding cash. Wright argues that this photo was irrelevant, cumulative, and unfairly prejudicial. However, we find that it was relevant for two reasons: (1) the arm tattoos helped identify Wright as the subject of the photo because the same tattoos are visible on Wright in Exhibit 21, and (2) the photo corroborated JB‘s physical description of the carjacker, including that he wore a similar black mask. The photo‘s probative value was not outweighed by the danger of unfair prejudice; even if the presence of cash was prejudicial, it was not “so inflammatory on its face as to divert the jury‘s attention from the material issues in the trial.” See Huyck, 849 F.3d at 440 (quotation omitted).
Wright further contends that the photo was inadmissible under Rule 404(b) because “the Government clearly meant to imply that Mr. Wright obtained that cash in an illegal fashion.” Appellant‘s Br. at 9. But Rule 404(b) is not applicable here because the photo does not contain evidence of extrinsic wrongful conduct; the government introduced it to help identify Wright as the carjacker—not as evidence of another “crime, wrong, or act” to prove Wright‘s character. See
2. Exhibits 16 and 17
Exhibit 16 contains Facebook conversations from September 25, 2017, between Wright and Rupp, and Wright and El-Amin. In relevant part, Wright says he has a “40 for trade” and is “trad[ing] only for a glizzy.” Government‘s Trial Ex. 16, at 1. El-Amin says to Wright, “Let me know before you do anything wit that b**ch,” an apparent reference to Wright‘s gun. Id. at 2. Wright also says, “You know I need glizzy.” Id. Exhibit 17 features another Facebook conversation from the same day, in which Wright sends several photos of a black handgun and says it is a “sdve smith and Wesson 40.” Government‘s Trial Ex. 17, at 1, United States v. Wright, No. 1:18-cr-00015-LTS-MAR-1 (N.D. Iowa 2019), ECF No. 185-26. The other party asks if Wright is “tryna get ah glick,” to which Wright replies, “Yea.” Id. The investigating officer testified that “glizzy” and “glick” mean a “Glock pistol,” Trial Tr., Vol. 2, at 221:15-16, 224:5-8, and that a “40 for trade” means a .40-caliber gun for trade, id. at 221:9-22.
Wright argues that these exhibits were irrelevant, confusing, and contained inadmissible hearsay. We disagree. These were relevant because they showed that Wright had a black .40-caliber Smith & Wesson handgun—the exact type of gun found in Ford‘s van after the robbery—prior to the carjacking and robbery. This is similar to the challenged evidence in Brooks and Jackson, where images showed the defendants with the firearms they used during their crimes. Brooks, 715 F.3d at 1077 (holding that images of the defendant holding a firearm were “highly probative as the firearm in the photos and video matched the firearm that police recovered from the scene of the van theft“); Jackson, 913 F.3d at 792 (holding that videos of the defendant with firearms recovered from the robbery were “highly probative” because they “linked [him] to the acquisition of the firearm and ammunition days before the robbery, [and] showed [his] knowledge of [his co-defendant‘s] use and possession of the firearm in the days leading up to the robbery“).
The fact that these conversations occurred one month prior to the carjacking does not, as Wright contends, render them irrelevant. See, e.g., United States v. Rembert, 851 F.3d 836, 839 (8th Cir. 2017) (finding that a video from over two years prior to the charged offense was not “overly remote in time“); United States v. Bassett, 762 F.3d 681, 687 (8th Cir. 2014) (finding that a prior act that occurred about eleven years before the charged offense was admissible). And although some terms in the conversations may have been foreign to the jury, we agree with the district court that any confusion would have been mitigated by the testimony of the government‘s witness, who explained the meaning of the terms.
Finally, these conversations did not contain inadmissible hearsay. Statements made by other parties in online chat conversations are not hearsay if they “were not offered for their truth but rather to provide context for [the defendant‘s] responses.” Manning v. United States, 738 F.3d 937, 943 (8th Cir. 2014). Here, the statements of the other persons in the conversations were not introduced for their truth but to provide context for Wright‘s statements.
3. Exhibit 21
Wright argues that Exhibit 21—a video of him with a firearm in his lap while counting a large amount of cash—was inadmissible under Rule 403 because it was cumulative and unnecessary. We find that this video was probative because (1) the gun in Wright‘s lap matched the gun seized by police, and (2) the visible tattoo helped identify Wright as the masked individual in Exhibit 14. As in Exhibit 14, any potential prejudice from the cash was not “so inflammatory” as to substantially outweigh the video‘s probative value. See Huyck, 849 F.3d at 440 (quotation omitted).
Wright also contends that Exhibit 21 was inadmissible under Rule 404(b). This argument fails, however, because the video depicted a gun resembling the one seized by the police. “Possession of a firearm is intrinsic to all of [Wright‘s] charges,” Brooks, 715 F.3d at 1077, and the video “is admissible as an integral part of the immediate context of the crime charged,” Jackson, 913 F.3d at 792 (quotations omitted). It qualified as intrinsic evidence tending to prove the actual commission of the charged offense, not merely a propensity to do so.
4. Exhibits 29–32
Finally, Wright argues that the district court erred in admitting a series of Facebook conversations between Wright and various individuals between October 18, 2017, and October 23, 2017. He argues that Exhibits 29–32 were irrelevant and contained inadmissible hearsay. To the contrary, these were relevant to show that Wright associated with Rupp around the time of the carjacking and robbery. Exhibit 29, for example, depicts a conversation in which Wright invites someone to “Gage crib.”4 Government‘s Trial Ex. 29, United States v. Wright, No. 1:18-cr-00015-LTS-MAR-1 (N.D. Iowa 2019), ECF No. 185-34.
For these reasons, we conclude that the district court did not abuse its discretion in admitting the challenged exhibits.
B. Jury Instructions
We review jury instructions for an abuse of discretion. United States v. Petroske, 928 F.3d 767, 772 (8th Cir. 2019). “In conducting such review, this court must determine whether the instructions, taken as a whole and viewed in light of the evidence and applicable law, fairly and adequately submitted the issues in the case to the jury.” Id. (quotation omitted). “A conviction will not be reversed due to allegedly erroneous jury instructions unless, viewed in their entirety, the instructions fail to correctly state the law.” United States v. Paul, 217 F.3d 989, 997 (8th Cir. 2000). “Further, jury instructions are evaluated in the context of the entire charge and a jury is presumed to follow all instructions.” Id.
Wright challenges jury instruction 5, in which the district court instructed the jury on the “intent” element of carjacking. The carjacking statute,
The intent requirement of § 2119 is satisfied when the Government proves that at the moment the defendant demanded or took control over the driver‘s automobile the defendant possessed the intent to seriously harm or kill the driver if necessary to steal the car (or, alternatively, if unnecessary to steal the car).
Holloway v. United States, 526 U.S. 1, 12 (1999); see also United States v. Wright, 246 F.3d 1123, 1127 (8th Cir. 2001).
The district court‘s instruction tracked the Supreme Court‘s language almost verbatim. Therefore, it properly stated the law as articulated by both the Supreme Court and this circuit. Wright acknowledges that the district court‘s instruction was based on current precedent but contends that Holloway was decided incorrectly. Wright‘s disagreement with the law does not render the instruction incorrect or provide a basis for a new trial.
Wright also challenges jury instructions 6 and 8, in which the district court instructed the jury that the phrase “carried a firearm” in
The Supreme Court has held that “the ‘generally accepted contemporary meaning’ of the word ‘carry’ includes the carrying of a firearm in a vehicle.” Muscarello v. United States, 524 U.S. 125, 139 (1998) (affirming convictions under
Furthermore, the district court‘s instructions were consistent with the Eighth Circuit Model Jury Instructions for
Wright argues in the alternative that jury instructions 6 and 8 were confusing. He maintains that the jury might have believed that in order to find Wright guilty of
C. Sufficiency of the Evidence
A district court may enter a judgment of acquittal after a jury verdict only if the “evidence is insufficient to sustain a conviction.”
1. Counts 1 and 2
Wright contends that JB‘s identification of him as the carjacker was unreliable and that without her identification, no reasonable jury could have convicted him of carjacking or the related firearm count. He argues that several factors cut against the reliability of JB‘s identification testimony, such as (1) difficulty seeing her assailant because his face was partially covered by a mask, it was nighttime, and the entire interaction lasted only 20 seconds; (2) her distracted attention, caused by having a gun pointed at her while her possessions were stolen; and (3) the possibility that she was influenced by seeing Wright on “MobilePatrol” and her mother‘s statement that Wright was involved with the robbery.
The district court correctly concluded that these are all factors the jury could have considered when reaching its verdict. “[W]e will not weigh evidence or witness credibility[] because those jury determinations are ‘virtually unreviewable on appeal.‘” United States v. Hollingshed, 940 F.3d 410, 417 (8th Cir. 2019) (quoting United States v. Alexander, 714 F.3d 1085, 1090 (8th Cir. 2013)). Because “[t]he jury is the final arbiter of the witnesses’ credibility, . . . we will not disturb that assessment.” Hayes, 391 F.3d at 961.
Furthermore, the jury‘s verdict was not based solely on JB‘s identification.
Viewing this evidence in the light most favorable to the government and accepting all reasonable inferences that support the verdict, we conclude that there was sufficient evidence for a reasonable jury to convict Wright of carjacking and carrying a firearm during and in relation to the carjacking.
2. Count 7
Wright also challenges the sufficiency of the evidence for his
Second, other evidence corroborated Ford‘s testimony. Police found a black Smith & Wesson .40-caliber handgun in the van after the robbery. Facebook photos showed Wright with a black Smith & Wesson .40-caliber handgun, identical to the one found in the van, and a Facebook conversation revealed that Wright attempted to trade that gun for a Glock pistol one month before the robbery. Additionally, Wright communicated on Facebook with El-Amin, the registered owner of the Smith & Wesson handgun, who said to Wright, “Let me know before you do anything wit that b**ch.” Government‘s Trial Ex. 16, at 2. Regardless of Ford‘s testimony, there was sufficient evidence for a reasonable jury to conclude that Wright possessed the handgun from the van.
Third, Wright relies on the Sprint employee‘s testimony and the store‘s security footage to argue that he did not display a gun during the robbery. This is irrelevant, however, because Wright did not have to display, or even carry, a gun inside the store to be found guilty of
3. Count 3
Finally, Wright contends that there was insufficient evidence to convict him of possessing a firearm as a prohibited person
“To convict an individual of being a felon in possession of a firearm, the government must prove the individual (1) was previously convicted of a felony and (2) knowingly possessed a firearm, and (3) the firearm was transported in interstate commerce.” United States v. Johnson, 745 F.3d 866, 869 (8th Cir. 2014).5 Wright stipulated to being a prohibited person under
transported in interstate commerce. Therefore, the government only had to prove the second element, and we have already found sufficient evidence for a reasonable jury to conclude that Wright knowingly possessed a firearm and carried it during or in relation to the robbery of the Sprint store.
Accordingly, the district court did not err in denying Wright‘s motion for a judgment of acquittal.
D. Sentencing Enhancement under U.S.S.G. § 2K2.1(b)(1)
Wright argues that there was insufficient evidence to support a two-level enhancement under
Wright acknowledges that “several photos show[] him holding a firearm on his Facebook page” but argues that there is “no proof that those [photos] are not [of] the same firearm.” Appellant‘s Br. at 21. The record flatly contradicts this assertion. At trial, the government presented photos of Wright with (1) one black-and-silver handgun, and (2) one black Smith & Wesson .40-caliber handgun. The latter appears to be the same weapon found in Ford‘s van after the robbery. At sentencing, the government presented another photo of Wright holding one black handgun with three more guns at his feet—two black, and one black-and-silver. The district court did not clearly err in concluding that he possessed between three and seven firearms.
E. Sentencing Enhancement under U.S.S.G. § 2B3.1(b)(5)
Wright argues that the district court erred in applying the carjacking offense characteristic under
Section 2B3.1 is the relevant sentencing guideline for a carjacking conviction under
The Eleventh Circuit addressed this issue in United States v. Naves, concluding that adding two levels under
Clearly the Sentencing Commission could have added to the Manual a separate section for carjacking with a base offense level of 22. It elected not to do so. Instead the Commission utilized the robbery section, § 2B3.1, which established a base offense level of 20 for the culpability incident to an offense involving robbery in general. The Commission then provided a two level increase to reflect the heightened seriousness of a robbery involving the violation of § 2119, the carjacking statute. In doing so, the Sentencing Commission acted within its statutory authority.
Id. The Fourth Circuit came to the same conclusion in United States v. Cunningham, 221 F. App‘x 258 (4th Cir. 2007) (per curiam). We are persuaded by the reasoning of our sister circuits. Accordingly, we conclude that the district court did not err in applying the carjacking offense characteristic when it calculated Wright‘s sentence.
III. Conclusion
For the foregoing reasons, we affirm the district court‘s decision.