Defendant-Appellant Robert Hendricks ("Robert") appeals from an August 4, 2015 judgment of the United States District Court for the Northern District of New York (Norman A. Mordue, Judge ) convicting him, following a jury trial, of (1) credit union robbery, in violation of
I. BACKGROUND
A. The Access Federal Credit Union Robbery
On the morning of August 19, 2013, Robert Hendricks ("Robert"), Shakeal Hendricks ("Shakeal"), Taiquan Howard ("Taiquan"), and a fourth man drove to Camden, New York, where they intended to rob a credit union.
On reaching the AFCU at approximately 12:25 p.m., the four men parked in a nearby lot. Shakeal entered the credit union lobby first while the other three men remained in the car. Shakeal approached the two tellers on duty and requested information regarding the credit union's financial services. The tellers directed him to a customer service representative's cubicle.
Meanwhile, Taiquan, his gun still pointed at the first teller, asked who could open the vault. The first teller responded that he could, so Taiquan forced him to do so. Robert then threw a backpack he was carrying to Taiquan to fill with money from the vault. While the first teller filled the backpack with cash, Robert remained in the lobby with his gun drawn, observing the other AFCU employees and its lone customer.
Once the backpack was full, Taiquan and Robert left the credit union. The four men then drove to a Dunkin' Donuts in East Syracuse, New York, before going their separate ways.
B. The Government's Case at Trial
In an indictment filed on March 13, 2014, Robert, Taiquan, and Charles E. Robinson, Jr. were charged with credit union robbery, in violation of
At trial, the Government elicited testimony from, among others, the three credit union employees who were present for the robbery. The Government asked these witnesses (1) how they felt during the robbery, and (2) how the robbery impacted them in the aftermath of the crime.
With respect to the latter inquiry, the Government asked the first teller whether he was "able to return to work" after the robbery.
The Government asked the second teller the same question. She testified that she did not return to work after the robbery because she "couldn't bring [herself] to go back in that credit union."
Finally, the Government asked the customer service representative how the "experience affect[ed her]."
Robert objected to the Government's question to the first teller and customer service representative based on irrelevance. He further objected to the testimony of the customer service representative as "potentially prejudicial" and "introduced for no purpose other than to inflame the jury."
C. Robert's Defense
At trial, Robert did not testify and called no witnesses. Instead, he relied on cross-examination of the Government's witnesses to suggest that he was mistakenly identified as a participant in the robbery.
In support of his misidentification defense, Robert sought to implicate a third party, Jamar Sesum, a.k.a. "Bam" ("Bam").
D. Jury Verdict and Sentencing
After deliberating for less than five hours, the jury found Robert guilty of both credit union robbery and using a firearm during a crime of violence.
At sentencing, the District Court found that Robert was a "career offender" under the 2014 edition of United States Sentencing Guidelines § 4B1.1 because of his prior felony convictions for burglary in the second degree, in violation of New York Penal Law § 140.25(2), and criminal sale of a controlled substance in the third degree, in violation of New York Penal Law § 220.39(1).
II. DISCUSSION
This case presents four questions:
(1) Whether federal credit union robbery, in violation of 18 U.S.C. § 2113 (a), is categorically a "crime of violence" for the purposes of a conviction for using a firearm during a crime of violence under18 U.S.C. § 924 (c)(1)(A)(ii) ;
(2) Whether the District Court abused its discretion when it admitted testimony from victims of the credit union robbery regarding the robbery's impact on them in the aftermath of the crime;
(3) Whether the District Court abused its discretion by excluding a photograph of a third party that Robert claims actually committed the robbery; and
(4) Whether the District Court plainly erred in sentencing Robert as a career offender under the residual clause of the 2014 edition of United States Sentencing Guidelines § 4B1.2(a)(2).
A. Standard of Review
We review legal questions underlying a challenge to a criminal conviction de novo .
The District Court's evidentiary rulings, in turn, are reviewed for abuse of discretion to the extent that they were objected to below.
Finally, where, as here, a defendant challenges his or her sentence on a basis not raised before the District Court, we review for plain error.
B. Credit Union Robbery as a "Crime of Violence"
Robert contends that his conviction for using a firearm during a crime of violence, in violation of
We begin our analysis with the relevant statutory text. Section 924(c)(1) provides that:
(A)... any person who, during and in relation to any crime of violence ... for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence ...
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years ...23
Section 924(c)(3) defines a "crime of violence" as "an offense that is a felony" and:
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.24
We refer to subparagraph (A) of § 924(c)(3) as the "force clause" and to subparagraph (B) as the "risk-of-force clause."
To determine whether a crime is a "crime of violence" under § 924(c)(3)(A), we apply the so-called "categorical approach."
We have recently held that § 2113(a) is a "divisible" statute because it contains two separate paragraphs that "delineate[ ] two methods of committing" credit union robbery.
This argument is unavailing. The Supreme Court has held that § 2113(a) requires proof of "knowledge with respect to the actus reus of the crime (here, the taking of property of another by force and violence or intimidation)."
We recently observed that "this circuit, in a summary order, and our sister circuits, in published opinions, have consistently held that federal bank robbery by intimidation is a crime of violence under the force clause of various sentence enhancement Guidelines and statutes."
We thus have little difficulty in holding that bank robbery committed "by intimidation" categorically constitutes a crime of violence for the purposes of § 924(c)(1)(A), and, therefore, that Robert's conviction for using a firearm during a crime of violence under § 924(c)(1)(A)(ii) does not constitute error, much less "plain error."
C. Victim Impact Testimony
Robert next argues that the District Court abused its discretion or erred by allowing the Government to question three credit union employee witnesses about the robbery's impact on them in the aftermath of the crime.
Testimony regarding a crime's impact on a victim is admissible at trial if it is relevant to prove an element of the charged offense and is subject to the normal tests for relevancy and unfair prejudice under Federal Rules of Evidence 401 and 403, respectively.
Here, Robert was charged with committing credit union robbery "by force and violence, or by intimidation."
Evidence regarding how the three credit union employees felt during the robbery is certainly relevant to whether Robert acted "by intimidation." Testimony regarding the robbery's impact on the victims in the aftermath of the crime may also be relevant to intimidation at the time of its commission. However, where-as here-the testimony concerns impact weeks and months after the crime had undisputedly ended, it likely is only minimally probative of whether Robert acted "by intimidation" during the robbery. Moreover, such testimony raises the specter of unfair prejudice.
We conclude that the District Court did not abuse its discretion or plainly err in determining that, for the purposes of Rule 401, the Government could ask the two tellers whether they could return to work and ask the customer service representative how the experience affected her.
We further conclude that the District Court did not plainly err in admitting the testimony of the two tellers that they could not return to work under Rule 403.
We reach a different conclusion, however, regarding the District Court's treatment of the customer service representative's testimony. Her testimony regarding her fear of groups of black men carried a substantial risk of evoking racial bias. Accordingly, the District Court should have stricken this testimony or issued a curative instruction pursuant to Federal Rule of Evidence 403, and its failure to do so was an "abuse of discretion."
That said, the record here permits us to conclude with "fair assurance that the jury's judgment was not substantially swayed by the error," and that the error is therefore harmless.
In this case, the Government's evidence against Robert was overwhelming. Shakeal Hendricks, one of the robbery participants, provided detailed testimony regarding Robert's involvement in planning and executing the crime. Laverne Hendricks, Robert's relative, testified regarding his actions on the day of the robbery and described his clothing, which was also captured in surveillance footage of the robbery. Additionally, the prosecution presented cellular telephone data placing a cell phone associated with Robert in the vicinity of the initial target in Camden, the AFCU in Rome, and the Dunkin' Donuts in East Syracuse. Finally, Detective Bolton of the Rome Police Department testified regarding Robert's statements during two interviews that took place on October 18, 2013 and November 22, 2013. These statements include Robert's admission that he participated in the robbery and that he disposed of clothing worn during the robbery at the Dunkin' Donuts. Detective Bolton's testimony also revealed that Robert repeatedly made false claims that he later admitted were untrue. Taken together, this overwhelming evidence of guilt assures us that the jury was not substantially swayed by the improper testimony.
We are further assured that the error is harmless because the wrongly admitted testimony was limited in scope. The improper testimony of post-incident fear or trauma was not especially important to the Government's case. All three witness properly testified regarding the fear and intimidation they experienced during the robbery, and Robert never disputed that the robbery was conducted in an objectively intimidating manner.
D. Third-Party Photograph
Robert also argues that the District Court erred in excluding a photograph of Bam, who Robert contends actually committed the robbery. We disagree.
A criminal defendant generally has the right to introduce at trial evidence tending to show that another person committed the crime, so long as the evidence "sufficiently connect[s] the other person to the crime."
Robert contends that he laid a sufficient foundation to support the introduction of Bam's photograph. He points to the following evidence: (1) Shakeal's testimony that he (Shakeal) and Bam were close friends; (2) an eye-witness account describing "two kids" running away from the robbery, even though Robert was 55 years old at the time; (3) records showing phone calls between Shakeal's phone and Bam's phone before and after the robbery; and (4) Shakeal's testimony that he went shopping for sneakers with Bam after the robbery.
Like the District Court, we conclude that this evidence is insufficient to show the required nexus between Bam and the robbery. Although the evidence Robert cites might tend to show that Bam knew about the robbery, none of the evidence places Bam anywhere near the robbery scene or suggests that he was otherwise involved in the crime. Accordingly, the District Court did not err in excluding Bam's photograph.
E. Application of the Career Offender Guidelines
Finally, Robert contends that the District Court erred in finding that he was subject to sentencing as a "career offender" under the 2014 edition of United States Sentencing Guidelines § 4B1.1.
Section 4B1.1 provides that:
(a) A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violenceor a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. 52
The 2014 Sentencing Guidelines Manual defines "crime of violence" to mean any state or federal offense, punishable by imprisonment for a term exceeding one year, that:
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is a burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another .53
Robert contends that his conviction for second-degree burglary under New York law does not qualify as a "crime of violence" because the "residual clause" is void for vagueness. But this argument is foreclosed by the Supreme Court's recent decision in Beckles v. United States , --- U.S. ----,
We have already held that third-degree burglary under New York law qualifies as a "crime of violence" under the residual clause of § 4B1.2(a)(2).
III. CONCLUSION
To summarize, we hold as follows:
(1) Credit union robbery, in violation of18 U.S.C. § 2113 (a), qualifies as a "crime of violence" under the "force clause" of § 924(c)(3)(A) for the purposes of Robert's conviction under18 U.S.C. § 924 (c)(1)(A)(ii) ;
(2) While the District Court erred or "abused its discretion" in admitting certain victim impact testimony, the error was harmless in this particular case in light of the substantial evidence of Robert's guilt;
(3) The District Court did not err or "abuse its discretion" in excluding a photograph of an alleged third-party perpetrator because Robert failed to establish a sufficient nexus between the third party and the crime; and
(4) The District Court did not err, much less plainly err, in sentencing Robert as a career offender under the 2014 edition of United States Sentencing Guidelines § 4B1.2(a)(2).
For the foregoing reasons, we AFFIRM the August 4, 2015 judgment of the District Court.
Notes
Because Robert appeals from a judgment of conviction entered after a jury trial, we "draw the facts from the evidence presented at trial, viewed in the light most favorable to the government." United States v. Thompson ,
App. 70.
Id. at 54.
Id. at 57.
Id . at 65.
Id .
The record reflects inconsistent spelling of this individual's name. We adopt the spelling used by the parties in their briefs on appeal.
App. 86.
Id . at 175.
The jury acquitted Charles E. Robinson, Jr. of credit union robbery, the sole crime with which he was charged.
U.S.S.G. § 4B1.1 provides that:
(a) A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
United States v. Sampson ,
See United States v. Vilar ,
United States v. Gupta ,
United States v. White ,
Gupta ,
United States v. Padilla ,
United States v. Pereira-Gomez ,
United States v. Hill ,
The Supreme Court has described the categorical approach in a series of cases involving the Sentencing Guidelines and the Armed Career Criminal Act. See Taylor v. United States ,
Hill ,
United States v. Moore ,
Leocal v. Ashcroft ,
Carter v. United States ,
United States v. McBride ,
Moore ,
See United States v. McCranie ,
Because we conclude that credit union robbery "by intimidation" is a crime of violence within the meaning of the "force" clause, § 924(c)(3)(A), we need not address the parties' arguments regarding whether it also is a crime of violence under the "risk-of-force" clause, § 924(c)(3)(B).
We note that " 'abuse of discretion' is a nonpejorative term of art; it implies no misconduct on the part of the district court." United States v. Bove ,
Cf. United States v. Copple ,
United States v. Kelley ,
United States v. Gilmore ,
Robert objected to the Government's questions to the first teller and customer service representative based on relevance, App. 54, but did not object to the Government's question to the second teller, App. 57.
Robert did not object to the admission of either teller's testimony based on Rule 403.
See supra note 37.
Padilla ,
United States v. McCallum ,
White ,
Wade v. Mantello ,
We generally apply the version of the United States Sentencing Guidelines in effect at the time of sentencing, unless doing so would violate the Ex Post Facto Clause. United States v. Riggi ,
U.S.S.G. § 4B1.1(a).
U.S.S.G. § 4B1.2(a) (emphasis added). The italicized text is generally referred to as the "residual clause."
United States v. Brown ,
We had previously stated that this holding was abrogated by Johnson v. United States , --- U.S. ----,
People v. Barney ,
Cf. Pereira-Gomez ,