UNITED STATES of America, Plaintiff-Appellee, v. Janson Lamark STRAYHORN, Defendant-Appellant.
United States of America, Plaintiff-Appellee, v. Jimmy Jay Strayhorn, Jr., Defendant-Appellant.
Nos. 12-4487, 12-4495
United States Court of Appeals, Fourth Circuit
Decided: Feb. 26, 2014.
Argued: Dec. 11, 2013.
Moreover, a party “is charged with notice of ... what common experience tells may, in all likelihood, occur, and to anticipate and guard against what usually happens.” Menish, 356 A.2d at 237 (citation omitted) (internal quotation marks omitted). Meyers testified that he and Hatfield had worked together “pretty much everyday” and “for years,” and there is nothing in the record to indicate that Hatfield previously failed to warn Meyers (or any repairman) to adjust the height of the bucket or that collisions with tractor-trailers “usually happen[ ]” when a worker is in a bucket and has an assistant on the ground keeping watch for approaching, high-clearance vehicles. Meyers was thus entitled to rely on Hatfield tо provide fair warning to him. See id. at 237-38 (“Absent actual or constructive knowledge to the contrary, one may act on the assumption that he will not be exposed to danger that will come only by the breach of duty which another owes him.“). Summary judgment on the basis that Meyers was contributorily negligent was therefore inappropriate.
III.
For the reasons set forth above, we vacate the district court‘s ruling that Meyers assumed the risk that the bucket would be struck by a vehicle because Meyers‘s status as a worker in the street precludes availability of the assumption-of-risk defense to Appellees. Further, we vacate position [where the bucket might get hit] to do the work that he needed to do at the time.” (J.A. 431; see id. at 440 (same).) Although the district court‘s ruling that Meyers was contributorily negligent and remand this case for trial.
VACATED AND REMANDED WITH INSTRUCTIONS.
Before GREGORY, DAVIS, and WYNN, Circuit Judges.
WYNN, Circuit Judge:
This appeal arises from the convictions of Janson Strayhorn and Jimmy Strayhorn for the robbery of P & S Coins and a second planned robbery of All American Coins.
Regarding Janson Strayhorn‘s appeal, we conclude that there was insufficient evidence to convict Janson Strayhorn of robbing P & S Coins. Thus, we hold that the district court erred by denying his motion for judgment of acquittal on the charges related to thе P & S Coins robbery. The government did, however, present sufficient evidence to sustain the conspiracy and firearm convictions against Janson Strayhorn relating to the All American Coins robbery.
Regarding Jimmy Strayhorn‘s appeal, we remand his case for resentencing on the brandishing charge arising from the P & S Coins robbery because the district court failed to instruct the jurors that to convict Jimmy Strayhorn of that offense, they needed to find that he had brandished a gun.
I.
In August 2010, two men robbed P & S Coins, a store in north Davidson County, North Carolina. The robbers arrived in a cream-cоlored Cadillac. One of the robbers pulled a revolver on Samuel Sims, the store‘s owner, while the other robber bound Sims‘s hands with zip ties and his legs with duct tape. The robbers took coins from a safe and a Colt Peacemaker revolver from a display case and then left the store.
Starting on October 24, 2010, Jimmy Strayhorn, who had been detained in Guilford County Jail as a suspect for other crimes, placed several phone calls to his girlfriend, Thania Woodcock. The police listened to those calls and learned that Jimmy Strayhorn had asked his brother Janson Strayhorn to rob All American Coins and Collectibles in Butner, North Carolina to raise enough money for Jimmy Strayhorn to post his bond. These calls were forwarded to the Butner police and officers were dispatched to watch All American Coins. Butner police knew from the recorded phone calls that the robbers would likely be driving Woodcock‘s Cadillac.
On October 29, 2010, Captain Donald Slaughter, a Butner police officer, was patrolling the area around All American Coins in an unmarked police car when he noticed a white Cadillac driving slowly past the store. When the Cadillac neared the unmarked police car, the Cadillac‘s occupants “slumped down[,]” and the driver “place[d] his hand up over his eyes ... to conceal his identity....” J.A. 146-47. Slaughter followed the Cadillac, which sped up and made several turns. Believing that the Cadillac‘s driver was trying to elude him, Slaughter called in the license plate, confirmed that he was following the targeted Cadillac, and stopped and searched the car аlong with Officer Knutson, who had been called for back-up assistance. The officers discovered that Janson Strayhorn was the Cadillac‘s driver, Kenneth Jones was the passenger, and the vehicle was registered to Woodcock, Jimmy Strayhorn‘s girlfriend. Upon search
After arresting Janson Strayhorn and Jones, the officers obtainеd a search warrant for Woodcock‘s house. There, the police found the same type of black zip tie as those used in the P & S Coins robbery, a coin taken from P & S Coins, and ammunition. It is undisputed that Jimmy Strayhorn resided, at least occasionally, at the Woodcock residence but that Janson Strayhorn did not.
As a result of these incidents, Defendants Janson Strayhorn and Jimmy Strayhorn were charged with one count each of: robbery in violation of the Hobbs Act, which prohibits actual or attempted robbery or extortion affecting interstate or foreign commerce (Count One); using, by brandishing, a firearm in relation to that robbery (Count Two); conspiracy to commit robbery in violation of the Hobbs Act (Count Three); and using a firearm in relation to the conspiracy (Count Four).1
At the ensuing joint trial, various witnesses testified, including Sims from P & S Coins, who identified Jimmy Strayhorn as one of the robbers. Notably, Sims did not identify Janson Strayhorn. Jimmy Strayhorn‘s DNA was also found on the plastic zip ties left in P & S Coins.
Additionally, a fingerprint expert testified that a partial fingerprint on the duct tape used to bind Sims‘s feet belonged to Janson Strayhorn. But the expert testified that he could not determine when that fingerprint had been imprinted on the tape and that such a print could remain on the tape for as long as a year.
Defendants unsuccessfully moved for a judgment of acquittal from the jury verdicts of guilty on all counts; they now appeal to this Court.
II.
We must first determine whether the government presented sufficient evidence to support Janson Strayhorn‘s convictions on the two P & S Coins-related charges. The centerpiece of the government‘s case against Janson Strayhorn consisted of a partial fingerprint on an easily movable object, i.e., duct tape. This Court has spoken on the sufficiency of such fingerprint evidence before, and a clоse review of our precedent is instructive.
In United States v. Corso, we reversed a burglary conviction because we found that the government‘s evidence was insufficient. 439 F.2d 956, 957 (4th Cir.1971) (per curiam). In that case, the evidence included the defendant‘s fingerprint on a matchbook cover that had been used by thieves to jam a lock, screwdrivers, and expert testimony that marks found on the door where the matchbook had been used had been made by one of the screwdrivers. Id. Witnesses also testified that the defendant made credit purchases with cash down payments soon after the burglary, and evidence indicated that more than a year before the burglary, the defendant had worked laying tile in a nearby building. Id. We held that the defendant‘s fingerprint on the matchbook cover was insufficient to support a burglary conviction.
In reaching that conclusion, we noted that “[t]he probative value of an accused‘s fingerprints upon a readily movable object is highly questionable, unless it can be shown that such prints could have been impressed only during the commission of the crime.” Id. Such timing evidence was lacking. Regаrding the rest of the government‘s evidence, we explained that some was without probative value and that the rest constituted an “accumulation of purely circumstantial evidence” that was insufficient “to permit the jury to find the defendant guilty beyond a reasonable doubt.” Id.
Similarly, in United States v. Van Fossen, we held that evidence of fingerprints on two photographic negatives and one engraving plate could not sustain the defendant‘s counterfeiting conviction because it was not supported by other evidence indicating that the fingerprints were imprinted at the time of a crime. 460 F.2d 38, 40-41 (4th Cir.1972). We focused on the fact that, “[t]o warrant conviction the trier of fact must be able to reasonably infer from the circumstances that the fingerprints were impressed at the time the crime was committed.” Id. at 41. But the government had failed to show when the defendant‘s fingerprints were imprinted on these moveable objects. “For this reason
By contrast, in United States v. Harris, we upheld a conviction where the defendant‘s fingerprints were on a note which read “this is a holdup” that was handed to a teller during a bank robbery. 530 F.2d 576, 579 (4th Cir.1976) (per curiam). Significantly, however, the government presented additional incriminating evidence, namely, the defendant‘s own “detailed confession[,]” which was admitted even though the defendant repudiated the confession before the trial. Id. In that context, we found “substantial evidence to permit the jury to find a guilty verdict beyond a reasonable doubt.” Id. Similarly, in United States v. Anderson, we sustained several bank robbery convictions supported, in part, by fingerprints on movable objects. 611 F.2d 504, 508-09 (4th Cir. 1979).2 As in Harris, however, “additional substantial evidence” supported those convictions. Id. at 509.
Finally, in Burgos, this Court sustained the defendant‘s drug convictions supported in part by a fingerprint on a plastic bag containing cocaine base. 94 F.3d at 874-75. Crucially, we noted that the fingerprint “was not the only incriminating evidence establishing Burgos‘s guilt; rather, there was an abundance of evidence establishing that Burgos was guilty :..” Id. That evidence included “conclusive” incriminating testimony that, for example, the defendant “knew” that his co-conspirators had crack cocaine on them and that the plan was “to sell the dope” at a North Carolina university. Id. at 865, 875.
In addition to the partial fingerprint, the “most significant” incriminating evidence the government offered is Janson Strayhorn‘s “possession” of the Colt Peacemaker. Appellee‘s Br. at 28. That gun had been taken during the P & S Coins robbery and was found in the Cadillac that Janson Strayhorn was driving when Butner police stopped him near All American Coins.
Engaging in a similar fact-specific inquiry here, we must conclude that the gun was no longer recently stolen by the time Butner police stopped Janson Strayhorn. Regarding timing, two months had passed between the P & S Coins robbery and Janson Strayhorn‘s arrest near All American Coins. The government introduced no evidence that Janson Strayhorn possessed the Colt until the days leаding up to the planned robbery of All American Coins. In fact, Jones testified that the Colt, along with other guns, was at Woodcock‘s house and Jones picked it up from her house to give to Janson Strayhorn in the days before the planned All American Coins robbery after Jimmy Strayhorn was arrested. Further, the Colt was small, light, and easily transferable relative to the “huge and heavy” logs at issue in Newsome, 322 F.3d at 333. In addition, Janson Strayhorn‘s possession of the gun, assuming arguendo that he did knowingly possess it, was not unexplained. Janson Strayhorn‘s brother Jimmy, who participated in thе P & S Coins robbery, asked Janson Strayhorn to commit the All American Coins robbery to help him post bail. To do so, Janson Strayhorn drove Jimmy Strayhorn‘s girlfriend‘s car, where the Colt was stored in a bag in the back seat. In light of these facts taken together, Janson Strayhorn‘s possession of the Colt Peacemaker did not properly allow for an inference of his having participated. in its theft from P & S Coins.
Moving beyond the fingerprint and the Colt, the government submits that Janson Strayhorn‘s conspiring with his brother to commit the second robbery is probative of his guilt on thе first robbery. But this is little more than an impermissible propensity argument, cf.
Finally, the government argues that the fact that Woodcock‘s vehicle was used in both the P & S Coins robbery and the All American Coins incident and that the zip tie found in Woodcock‘s home was the same type as that used in the P & S Coins robbery somehow demonstrate Janson Strayhorn‘s guilt. We disagree. Although the car and zip tie might demonstrate Woodcock‘s involvement (or that of Jimmy Strayhorn, who was at least an occasional occupant of the Woodcock residence), this evidence is not helpful in answering the question presented here: whether substantial evidence linked Janson Strayhorn to the commission of the P & S Coins robbery.
In sum, a fingerprint on an easily movable object with no evidence of when it was imprinted is sufficient to support a conviction only when it is accompanied by additional incriminating evidence which would allow a rational juror to find guilt beyond a reasonable doubt. Here, the government failed to adduce such evidence. Accordingly, we reverse the district court‘s denial of Janson Strayhorn‘s motion for judgment of acquittal on Counts One and Two.3
(1) that the defendant coerced the victim to part with property; (2) that the coercion occurred through the wrongful use of actual or threatened force, violence or fear or under color of official right; and (3) that the coercion occurred in such a way as to affect adversely interstate commerce. United States v. Buffey, 899 F.2d 1402, 1403 (4th Cir.1990).
To prove the firearm charge in violation of
Specifically, recorded telephone calls that Jimmy Strayhorn placed from the Guilford County Jail reflect that Janson Strayhorn wanted to “get rid of that gun” but that Jimmy Strayhorn suggested Janson Strayhorn “use it” instead. Supp. J.A. 4. Defendants then discussed how much money Jimmy Strayhorn needed to make bail, and Jimmy Strayhorn described a “move” that would enable Janson Strayhorn to raise all of the money. Supp. J.A. 5-7. Although Janson Strayhorn stated that “[his] face ain‘t going to be seen” and that he intended to go only to “show[] them where it‘s at[,]” he nevertheless plainly agreed to do the “move” the next day: the morning of October 28, 2010. Supp. J.A. 7-8. The plans failed on October 28 because Jones was unavailable. On October 29, Defendants and Woodcock discussed the robbery again on a recorded call, and Jimmy Strayhorn described the plan in detail: Janson Strayhorn would get Woodcock‘s car and pick up Jones, they would “make that move[,]” and then Janson Strayhоrn would return the car to Woodcock. Supp. J.A. 25. The transcript of the phone calls leaves little, if any, doubt that Janson Strayhorn agreed to the plan, even if he did so reluctantly.
The government also proffered the transcript of a phone call that Janson Strayhorn placed to Woodcock after he had been arrested. That call reflects Janson Strayhorn‘s anger at having agreed to the plan. Janson Strayhorn further stated that he was “thankful we ain‘t caught in no act of doing nothing[,]” but that they were stoрped before the robbery commenced. Supp. J.A. 37-38.
In sum, the record contains substantial evidence, when viewed in the light most favorable to the government, to support Janson Strayhorn‘s All American Coins-related convictions. The district court did not, therefore, err in denying his motion for judgment of acquittal as to Counts Three and Four.
IV.
Although the Supreme Court decided Alleyne after the conclusion of Jimmy Strayhorn‘s trial and sentencing, Alleyne nevertheless applies because this appeal was still pending. Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (“[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.“).
In this case, Count Two charged Jimmy Strayhorn with “knowingly carry[ing] and us[ing], by brandishing, a firearm” during the P & S Coins robbery in violation of
For the foregoing reasons, we reverse the judgment of the district court as to Janson Strayhorn‘s convictions on Counts One and Two, affirm Janson Strayhorn‘s convictions on Counts Three and Four, and vacate the sentence and remand Janson Strayhorn‘s case for resentencing in light of our disposition on his motion for judgment of acquittal. Further, we vacate and remand Jimmy Strayhorn‘s case for resentencing in light of the Alleyne error.
AFFIRMED IN PART, REVERSED IN PART, AND VACATED AND REMANDED FOR RESENTENCING.