UNITED STATES OF AMERICA v. HASSAN SHARIF ALI, a/k/a Big Hassan
No. 15-4433
United States Court of Appeals, Fourth Circuit
March 19, 2021
PUBLISHED. Argued: January 29, 2021. Decided: March 19, 2021.
Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:14-cr-00362-CCE-1)
Before WILKINSON, NIEMEYER, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Niemeyer and Judge Thacker joined.
ARGUED: Emily Damsgaard Gladden, TIN FULTON WALKER, & OWEN, PLLC, Raleigh, North Carolina, for Appellant. Stephen T. Inman, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Noell P. Tin, TIN FULTON WALKER & OWEN, PLLC, Charlotte, North Carolina, for Appellant. John P. Cronan, Acting Assistant Attorney General, Matthew S. Miner, Deputy Assistant Attorney General, John P. Taddei, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Ripley Rand, United States Attorney, Matthew G.T. Martin, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Defendant Hassan Ali led a band of thieves on a spree of armed robberies in July 2013. A jury found him guilty of four counts of aiding and abetting Hobbs Act robbery,
I.
A.
In April 2013, Ali had debts that he could not repay. To solve this problem, he texted someone to whom he owed money that he was going to “go rob something.” J.A. 532. Ali then planned the robberies with the four co-defendants in this case: Rodney Frazier, John Griffin, Jr., Hassan Hassan, and Kelvin Jacobs, Jr. Although these four men were not all well-acquainted with each othеr, Ali knew and brought all of them together for the robberies.
Ali first gathered with Hassan, Jacobs, and a few other men a couple of days before July 7 to plan the robbery of a Food Lion grocery store on Golden Gate Drive in Greensboro, North Carolina. Ali assigned roles to each co-conspirator and told them where to be for the robbery. On July 7, Jacobs made a diversionary call, Hassan served as lookout, and Griffin went into the store shortly before 11 p.m. After entering the store, Griffin threatened the clerk with his gun, forced her to open the safe, took the approximately $800 within it, and fled the store. Later, Ali divided up the money.
On July 15, the crew robbed the Food Lion on Drawbridge Parkway. It followed the same pattern as the first robbery except with Frazier accompanying Griffin into the store to get the money. They grossed approximately $1,000 from the theft, and Ali again distributed the money afterward.
This pattern continued at the robbery of Jenny‘s Beauty, a Greensboro beauty salon, on July 20. The fourth and final robbery
The five men were indicted on September 30, 2014. Before trial, all four of Ali‘s co-defendants accepted plea agreements offered by the government. In exchange for their testimony at Ali‘s trial, the government dropped some of the charges against them—three of the eight against Griffin, three of the six against Jacobs, one of the four against Frazier, and four of the eight against Hassan.
B.
Ali‘s trial began on January 5, 2015. On the first day of trial, the government put on law enforcement witnesses, the Brink‘s employees, and other nоn-co-defendant witnesses. The next morning, Griffin was the second person to testify. He discussed the planning and execution of all four robberies and detailed the roles Ali and each co-defendant played in the series of crimes.
After Griffin finished and returned to the holding cell, the defense counsel requested a conference at the bench. Defense counsel was concerned that Griffin would go back to his cell and talk about his testimony with the other co-defendants. The court recognized that “[t]hey ought to be sequestered” and said that it would take care of it at the break, to which there was no objection. J.A. 328. Then, the government called its next witness.
The court recessed after that witness, excused the jury, and discussed the co-defendants’ custodial arrangements with counsel. The marshal explained that Frazier and Jacobs were in one cell, Griffin and Hassan were in an adjacent cell, and Ali was in a third cell. J.A. 333–34. Defense counsel expressed concern that—given the co-defendants’ proximity—they would discuss their testimony and “know which questions [we]re being asked.” J.A. 334. Since the co-defendants were scheduled to take the stand intermixed with other witnesses throughout the trial, the court found that it could not ensure that they would not be in the holding cells together. Given the limited holding space in the building, the court concluded that there was no arrangement that would keep all co-defendants out of talking distance with each other.
After summoning Griffin‘s attorney to the conference, the court inquired whether Griffin would be needed at any point that afternoon or if he cоuld instead be returned to the Greensboro Jail. Griffin‘s attorney and the government‘s attorney acquiesced in sending him away, but Ali‘s attorney said he was unsure whether he would need to call him later that day. The court concluded that Griffin would need to be kept in the courthouse for the remainder of the day.
The judge then informed counsel that she would “instruct the rest of the witnesses
Subsequently, the jury returned from recess, and the government called five more witnesses. When the court dismissed the jury fоr lunch, it told the marshal that Griffin would not be needed for the day and thus could be returned to jail. Neither counsel commented on this instruction. After lunch, the government called Jacobs to the stand. He testified as to the organization, planning, and execution of the two Food Lion robberies and the Brink‘s armored car robbery. He neither participated in nor knew about the beauty salon robbery. On cross-examination, Jacobs testified that he had not talked to Frazier about the case while they were being held in the courthouse that day. He also said that he had never talked to either Frazier or Griffin about the case. After the government finished re-direct, the court released Jacobs for the day but failed to instruct him not to discuss his testimony with the other co-defendants. The government сalled nine other witnesses before the court adjourned for the day. The court confirmed with counsel that Jacobs and Griffin would not be needed at the courthouse for the third day of trial.
The next day, Frazier was the fourth witness to testify. Frazier discussed the planning and execution of the Drawbridge Food Lion robbery and the Brink‘s robbery. He explained what each man did during the robberies, what weapons were used, and how the money was divided up afterward. On cross-examination, Frazier said that he was in a holding cell with Jacobs, Griffin, and Hassan but they did not discuss the case or their testimony. J.A. 601. When Frazier finished testifying, the court did not instruct him not to discuss his testimony or the questions he was asked with his co-defendants.
Following Frazier, one police officer testified briefly and then the government called Hassan to the stand. Hassan testified as to the planning and execution of all four robberies. On cross-examination, defense counsel asked Hassan about his custodial arrangements while he was waiting to testify. Hassan said he had shared a cell with Griffin the day before, and Griffin told him who was present in the courtroom but said nothing about the case. J.A. 639-40.
The government‘s final witness was an FBI expert in cell site location analysis. He plotted the data for the phone numbers associated with Ali and his four co-defendants on maps. These maps showed the men together at the planning house before the robberies, at the robbery sites when those robberies took place, and reunited after the robberies.
Consulting with counsel, the court finalized the jury instructions and verdict form. All agreed on a general verdict form thаt included only “guilty” and “not guilty” for each count without use of a special interrogatory for the jury to mark the theory of guilt. The court explained to the jury that the defendant could be found guilty of Hobbs Act robbery under either an aiding-and-abetting theory or a conspiracy theory. For the
C.
Following the trial, Ali had some disagreements with his attorney and began
A few weeks later, Ali filed another pro se motion for a judgment of acquittal and motion for a new trial. Attached to this motion was a handwritten declaration by Zeb Maggard, who alleged he was held at the courthouse with Ali‘s co-defendants on January 6 and 8. He claimed that “on both days these witnesses talked about their case and testimonies with each other.” J.A. 990. He said they talked to each other “about how [their] testimony went” and “share[d] with them the questions and . . . answers.” J.A. 990.
At the sentencing hearing, the court granted the motion to withdraw and allowed Ali to proceed pro se. The court considered Ali‘s motions for a judgment of acquittal and a new trial, permitted him to present argument on them, and rejected the first motion with explanation and the second motion summarily. Ali was sentenced to total of 1,195 months of imprisonment: 235 months on each Hobbs Act robbery charge, to run concurrently; 60 months on the first
II.
On appeal, the defendant raises three assignments of error. First, he claims the district court erred when it failed to separate the co-defendants while they were being held together at the courthouse awaiting their turn to testify. We review evidentiary matters such as the district court‘s sequestration order for abuse of discretion. United States v. Rhynes, 218 F.3d 310, 315 (4th Cir. 2000) (en banc) (plurality opinion).1
A.
When the complained-of conduct falls outside the Rule‘s text, however, this presumption does not apply. District courts frequently employ their discretionary authority to strengthen their sequestration orders outside of the courtroom. See, e.g., Rhynes, 218 F.3d at 316 (plurality opinion) (discussing district court‘s instruction “that witnesses were not to discuss their testimony with one another“); United States v. Headman, 594 F.3d 1179, 1181 (10th Cir. 2010) (same); United States v. Sepulveda, 15 F.3d 1161, 1176 (1st Cir. 1993) (“Outside of the heartland, the district court may make whatever provisions it deems necessary to manage trials in the interests of justice, including the sequestration of witnesses before, during, and after their testimony . . . .“); see also 4 Weinstein & Berger, supra, § 615.06. In such circumstancеs, we have not presumed prejudice and have required a greater showing by the defendant that he was harmed by out-of-courtroom conversations between witnesses. See United States v. Harris, 39 F.3d 1262, 1268 (4th Cir. 1994). Several sister circuits have done the same. See Engelmann, 701 F.3d at 878 (remanding for an evidentiary hearing when there were no factual findings on which to determine prejudice); Solorio, 337 F.3d at 594 (requiring defendant to show prejudice); United States v. Green, 293 F.3d 886, 891–92 (5th Cir. 2002) (same); Virgin Islands v. Edinborough, 625 F.2d 472, 474 (3d Cir. 1980) (same).
The reasons for this different treatment are manifold. First, the Rule‘s text mandates courtroom exclusion of witnesses upon request; it leaves no discretion to the district court. Any further measures, however, imposed by the court are matters of discretion, not of right, and thus deserve the kind of deference we generally afford to questions of trial management. See, e.g., United States v. Smith, 452 F.3d 323, 333–34 (4th Cir. 2006). Second, hearing in real time the lawyers’ questions and the witnesses’ responses presents the scenario most susceptible to the sоrt of testimonial tailoring that the court cannot remedy. But when witnesses are relying on memory during out-of-court conversations, they are more likely to transmit mistaken or incomplete recollections and thus more likely to be caught on a thorough cross-examination by the defendant‘s lawyer. Finally, this differential treatment aligns with our approval of different remedies for violations of a sequestration order depending on the circumstances and the severity of the violation. See Rhynes, 218 F.3d at 322-23 (approving sanctioning the witness, corrective jury instructions, and broad cross-examination as possible remedies). We have even upheld a criminal contempt
B.
With this framework in mind, we review the circumstances surrounding Ali‘s trial. No witness was in the courtroom while another was testifying, so the presumption of prejudice to the defendant under Rule 615 no longer applies. Thus we review the district court‘s actions for abuse of discretion.
Ali complains that the district court did not do enough to prevent his co-defendants from discussing their testimony with each other after they left the stand and returned to the courthouse‘s holding area. Faced with the building‘s limited space to hold the co-defendants, the trial court recognized the potential for the co-defendants to speak with each other. She thus instructed the attorney for the first witness to testify (Griffin) to tell his client not to speak about his testimony with his co-defendants. She also offered to have Griffin sent back to the jail. Neither the government nor Griffin‘s counsel opposed sending him away from the courthouse, but Ali‘s counsel objected because he was uncertain whether he would need to call Griffin.
Ali cannot complain after the trial or on appeal about something he had the express opportunity to prevent. Sending Griffin back to jail after his testimony, as the district court offered, would have addressed Ali‘s concerns without prejudicing the presentation of his case. Granting relief on Ali‘s claim would encourage gamesmanship—that is, a defense counsel remaining silent rather than objecting to a supposed error. See, e.g., Puckett v. United States, 556 U.S. 129, 134 (2009) (discussing the problems caused by defense counsel “remаining silent about his objection and belatedly raising the error only if the case does not conclude in his favor“). Allowing defendants to claim error after raising an issue with the trial judge and rejecting her reasonable solution would encourage litigants not to accept sensible accommodations and discourage trial participants from working together to devise practical solutions to difficult problems of witness location.
Furthermore, the opportunities that the co-defendant witnesses had to communicate with each other after testifying were limited. Griffin remained in the courthouse‘s holding cells only from the completion of his testimony before the morning recess until the lunch recess, when he was, in fact, sent back to jail. Jacobs testified in the afternoon, so he too was in the holding cell with Frazier and Hassan for only a limited amount of time from the end of his testimony to the end of the day. The following day only Frazier and Hassan were brought to the courthouse. There was only one short witness between their turns on the stand—again providing limited time for any collaboration.
Finally, the district court made appropriate allowances for defense counsel to cross-examine the co-defendants about whether they colluded on their testimony. This is one of the remedies this court has endorsed for addressing potential violations of sequestration orders. See United States v. Smith, 441 F.3d 254, 263 (4th Cir. 2006). And Ali‘s counsel took full advantage of his right to cross-examine the co-defendants. Asked whether he had talked to Frazier in the holding cell, Jacobs answered,
This was not the easiest situation in the world to manage, what with four co-defendant witnesses and limited holding cells. In the context of defendant‘s requests and the building‘s constraints, the district judge handled this issue with care. At no point did Ali move for a mistriаl or request a limiting instruction with regards to sequestration. And as noted, the court suggested removing Griffin from the building and allowed fulsome cross-examination. This was a fully sufficient response to Ali‘s request and we thus find no abuse of discretion here.
III.
Second, Ali claims that the district court erred by denying his motion for a new trial based on new evidence. We review the district court‘s decision for abuse of discretion. United States v. Lighty, 616 F.3d 321, 374 (4th Cir. 2010).
A.
Trial courts may vacate convictions “and grant a new trial if the interest of justice so requires.”
Defendant suggests that the district court‘s failure to give an explanation directly responsive to his motion entitles him to de novo review. This contention is incorrect. Unlike in sentencing, the district court does not need to expound upon its reasoning in its denial of a new trial motion. See, e.g., United States v. Fowler, 948 F.3d 663, 668 (4th Cir. 2020) (noting that sentencing court is required “to adequately explain the chosen sentence . . . to allow for meaningful appellate review” (quoting Gall v. United States, 552 U.S. 38, 50–51 (2007))). Even when the transcript does not explicitly show as much, “[t]rial judges are presumed to know the law and to apply it in making their decisions.” Walton v. Arizona, 497 U.S. 639, 653 (1990), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002).
B.
To succeed on a
Ali presents two relevant pieces of new evidence: a sworn declaration by himself recounting what he overheard in custody (Ali Declaration) and a sworn declaration of Zeb Maggard, who claimed to be in the same cellblock at the courthouse as the co-defendant witnesses (Maggard Declaration). See J.A. 883–84, 990. We can dispose of the Ali Declaration promptly because it is not newly discovered evidence. Although the declaration was filed after the trial, its assertions are nothing more than Ali‘s observations during the trial. These observations were not new evidence because Ali was aware of them during trial and even claimed to have brought them to his counsel‘s attention. Thus, the Ali Declaration fails to meet the first prong of the Chavis Test.
The Maggard Declaration fails to satisfy the third Chavis prong because it is merely impeachment evidence. Such evidence “go[es] only to the credibility of a witness” and “does not generally warrant the granting of a new trial.” United States v. Custis, 988 F.2d 1355, 1359 (4th Cir. 1993) (citing United States v. Stockton, 788 F.2d 210, 220 (4th Cir. 1986)). Here the Maggard Declaration calls into question the credibility of the co-defendants’ claims that they did not discuss their testimony when they were being held at the courthouse. See J.A. 990. This “evidence does not directly support some alternate theory of the crimes, nor does it provide any legal justification for” Ali‘s actions. United States v. Robinson, 627 F.3d 941, 949 (4th Cir. 2010). Rather, the Maggard Declaration merely calls into question the co-defendants’ honesty on an issue orthogonal to the defendant‘s guilt. See id. This is classic impeachment evidence that cannot satisfy the third prong of the Chavis Test.
Given the ample evidence that was adduced at trial against the defendant, the “new” evidence that Ali proffered in support of his
IV.
The final issue on review is whether the invalidity of one of the two theories
A.
When the district court instructed the jury on the Hobbs Act robbery charges and the
theories. For Hobbs Act robbery, he could be found guilty “because he . . . aided and abetted the crime of interfering with commerce by robbery” or “because he consрired with others to commit that crime.”3 J.A. 790. The court said that the government did not need to prove both; rather “[o]ne [wa]s sufficient.” J.A. 790. The court then explained the requirements for proving each theory. See J.A. 791–93. Next, the court turned to the first
Ali claims that the district court‘s instructions to the jury were improper because one of the two theories of guilt could not serve as a valid predicate for
We use the modified categorical approach for divisible statutes—those “that list[] ‘potential offense elements in the alternative,’ and thus include[] ‘multiple, alternative versions of
First, we turn to the theory of Hobbs Act conspiracy. There is no room for doubt that there was an instructional error here. After the trial, we held that conspiracy to commit Hobbs Act robbery is not categorically a crime of violence and thus cannot serve as a valid predicate for a
It is equally clear that the error was plain. An error is plain if, “at the time of appellate consideration[,] . . . the settled law of the Supreme Court or this circuit establishes that an error has occurred.” United States v. Ramirez-Castillo, 748 F.3d 205, 215 (4th Cir. 2014) (internal quotation marks and citations omitted). Since Simms established for this circuit that Hobbs Act conspiracy is not a crime of violence, we conclude that the instructional error was plain.
B.
The second theory of guilt, however, was a valid predicate for Ali‘s
In the context of the Immigration and Nationality Act (INA), Pub. L. No. 82-414, 66 Stat. 163 (1952), as amended,
Thus, since the law generally treats aiders and abettors the same as principals, the categorical approach must as well. See id. at 190.
That
We also note that this brings us in line with our sister circuits that have decided this issue. See United States v. Richardson, 948 F.3d 733, 741–42 (6th Cir. 2020) (“There is no distinction between aiding and abetting the commission of a crime and committing the principal offense. Aiding and abetting is simply an alternative theory of liability indistinct from the substantive crime.“); United States v. Garcia-Ortiz, 904 F.3d 102, 109 (1st Cir. 2018); United States v. Deiter, 890 F.3d 1203, 1214–16 (10th Cir. 2018) (explaining that
“aiding and abetting is not an independent crime,” id. at 1214 (citation omitted)); In re Colon, 826 F.3d 1301, 1305 (11th Cir. 2016) (explaining that “the acts of the principal become those of the aider and abettor as a matter of law” (citation omitted)); see also United States v. McKelvey, 773 F. App‘x 74, 75 (3d Cir. 2019); United States v. Grissom, 760 F. App‘x 448, 454 (7th Cir. 2019). We agree with our sister circuits and conclude thаt aiding and abetting Hobbs Act robbery is a valid predicate under
C.
Having determined that the district court did instruct the jury on a valid predicate for the
This fundamentally misunderstands what the categorical approach accomplishes and the nature of our inquiry under plain error review. The purpose of the categorical (and modified categorical) approach is not to determine what the predicate was—a factual question—but rather whether a particular predicate meets the requirements of a “crime of violence“—a purely legal question. See Descamps, 570 U.S. at 257–58 (explaining the categorical and modified categorical approaches). And, under that approach, we already know that conspiracy does not count and aiding and abetting does. With that knowledge, the third prong of the
Unlike the determination of whether a criminal offense is a “crime of violence,” this requires a record-intensive factual inquiry.
Our precedent mandates this very approach. In fact, instructional errоrs have for over one hundred years been a classic example of the kind of error subject to plain and harmless error review. See, e.g., Holmgren v. United States, 217 U.S. 509, 522–23 (1910) (considering prejudice to defendant in refusing to reverse an unpreserved jury instruction error). In United States v. Robinson, 627 F.3d 941 (4th Cir. 2010), we reviewed a
This clearly forecloses the inquiry defendant suggests—he argues that there is uncertainty as to which theory (conspiracy or aiding and abetting) the jury adopted when it found him guilty of the
The appropriate inquiry is a “‘case-specific and fact-intensive’ determination.” Robinson, 627 F.3d at 956 (quoting Puckett v. United States, 556 U.S. 129, 142 (2009)). We have conducted this analysis countless times without complication. See, e.g., United States v. Collins, 982 F.3d 236, 241–42 (4th Cir. 2020) (finding no prejudice in jury instruction on
Considering the overwhelming weight of the evidence the government presented at trial, the defendant cannot meet his burden of establishing that the outcome would have been different absent the improper instruction. Through the use of historic cell site location data, the government
The testimony from all four co-defendant witnesses provided further detail as to the role that Ali played at the locations the cell data place him. First, their testimony was consistent that Ali planned the crimes. See J.A. 280, 282–84, 287 (Griffin); J.A. 393–95, 398, 400–01, 404 (Jacobs); J.A. 548–50, 556–57 (Frazier); J.A. 611, 616–17 (Hassan). Second, he provided firearms and served as a driver in the robberies. See J.A. 276, 278, 281, 285 (Griffin); J.A. 549, 564–65 (Frazier); J.A. 611, 614–15, 617 (Hassan). Third, he helped Frazier steal the van for and carried a firearm during the Brink‘s robbery. See J.A. 288, 292 (Griffin); J.A. 557–61 (Frazier). During the Brink‘s robbery, Ali took a bag of money from the truck but dropped it while fleeing. See J.A. 292 (Griffin); see also J.A. 194–96 (Brink‘s security guard). Finally, after each robbery, Ali determined how the spoils were split. See J.A. 284–85, 294–95 (Griffin); J.A. 408 (Jacobs); J.A. 552, 569 (Frazier); J.A. 613, 618 (Hassan). All of this unrebutted evidence in the record supports a finding that Ali aided and abetted the robberies. Thus, we conclude that the improper instruction did not affect the defendant‘s substantial rights.
Since the defendant failed to show an abridgment of his substantial rights, there is no need to conduct the exercise of discretion analysis under the fourth Olano prong. See United States v. Wallace, 515 F.3d 327, 333 (4th Cir. 2008).
V.
Ali brought three different claims on appeal, and we have conscientiously reviewed each one. None are meritorious. It is noteworthy that he has generally misunderstood the applicable standard of review and requеsted we undertake a de novo examination of the district court‘s decisions. But one of the key responsibilities of an appellate court is to look at each alleged error through the appropriate lens. Plain error review not only encourages timely objections from trial counsel so that no error, plain or otherwise, occurs. It also allows appellate courts not to miss the forest for the trees. It allows us to sense from some remove that which really matters. So recognized England‘s great blind poet, who understood that, despite his lack of vision, his talents were not useless. See John Milton, On His Blindness (1655). Generations later, we know that he could see more of the human condition than many a sighted man. See generally John Milton, Paradise Lost (1667).
Stepping back, two things are clear. First, Ali has only unsubstantiated assertions that his trial went awry. Second, the district court endeavored diligently and successfully to conduct a fair trial and ensure justice was done. All in all, a just result was reached and we reject Ali‘s invitation to order a redo of this sound proceeding. As such, the judgment of the district court is
AFFIRMED.