UNITED STATES of America, Plaintiff-Appellee, v. Keenan Aubrey DAVIS, Kelsey Videl Coffee, Defendants-Appellants.
No. 15-10927
United States Court of Appeals, Eleventh Circuit.
November 22, 2016
841 F.3d 1253
Finally, the Tax Court did not clearly err in determining that a deficiency judgment against Paragon would not be “impossible” given the funds flowing in and out of Paragon‘s bank account in 2009. Though this money came from Tucker in a purported attempt to use Paragon as a “conduit” to cut his own losses, a move that Tucker now acknowledges was a “disastrous mistake,” his actions demonstrate that a deficiency judgment against Paragon would have been possible after the foreclosure sales. Taxpayers cannot have it both ways—they cannot both freely use a business to settle debts and sell assets and then claim that the business was defunct the whole while.
Accordingly, the Tax Court properly determined that Tucker had not met his burden of demonstrating that the Commissioner‘s disallowance of the
IV. CONCLUSION
For the foregoing reasons, we affirm the decision of the Tax Court.
AFFIRMED.
Cherie Krigsman, Yvette Rhodes, Susan Hollis Rothstein-Youakim, Arthur Lee Bentley, III, U.S. Attorney‘s Office, Tampa, FL, Shawn P. Napier, U.S. Attorney‘s Office, Orlando, FL, for Plaintiff-Appellee.
Michelle P. Smith, Law Office of Michelle P. Smith, PA, Orlando, FL, for Defendant-Appellant Keenan Aubrey Davis.
Charles M. Greene, Paetra Terry Brownlee, Charles M. Greene, PA, Orlando, FL, for Defendant-Appellant Kelsey Videl Coffee.
Before MARTIN and JORDAN, Circuit Judges, and VINSON,* District Judge.
The verdict form is one of the most important parts of a criminal jury trial, but it often receives the least attention. This is a case in point.
The defendants here were charged (and found guilty of several counts) in an eight-count superseding indictment. The verdict forms that were given to the jury mistakenly listed one of the counts as “robbery” instead of “using a firearm during and in relation to [a robbery].” Everyone missed the error—the defendants and the government (who jointly submitted the verdict forms), the district court judge, and court personnel—and the error was later transposed onto the defendants’ written judgments, where it was not discovered until more than five months after the trial. When the district court learned of the error, it gave the parties notice and amended the judgments under
I.
Between May and September 2013, there was a string of six retail robberies in and near Orange County, Florida. The robbers wore gloves and hid their faces behind masks. Eventually, Keenan Davis was arrested and charged with all six robberies, while his friend Kelsey Coffee was
(1) On the morning of May 10, 2013, Davis, Rogers, Patterson, and Scott robbed the manager of Rack Room Shoes at an outlet mall in Orlando as she left the store with a bank deposit. The robbery was Patterson‘s idea as he worked at the store and knew when the manager left for the bank. Patterson waited outside and alerted the others when she exited the store, at which point Davis and Scott sprayed her with mace and grabbed the deposit, while Rogers drove the getaway car. No firearm was used during this first robbery, and there is no evidence that Coffee was involved.
(2) On May 26, 2013, Davis (carrying a shotgun) and Patterson (carrying an “airsoft” gun that looked like a real pistol2) robbed a Levi‘s store just a few doors down from the Rack Room Shoes. Scott served as lookout and Rogers drove the getaway car. It was the government‘s theory that this second robbery was carried out with “inside help” from Coffee, who worked at the store and was friends with Davis, Patterson, Scott, Rogers, and Tillman. After the robbery, Davis, Patterson, Scott, and Rogers met at a hotel room to
(3) Early in the morning on July 30, 2013, Coffee, Davis, Patterson, and Rogers robbed an Oshkosh b‘Gosh store at the outlet mall. Coffee carried the shotgun and Patterson carried the airsoft gun. They removed a 300-pound safe from the store, which they later discovered contained only about $2,000 in cash, gift cards, and a couple of iPads.
(4) On August 5, 2013, Coffee, Davis, and Patterson robbed a McDonald‘s in Apopka, Florida. Once again, Coffee carried the shotgun and Patterson carried the airsoft gun. They tied up all the employees with “zipties” and took what they could from the safe, which was only about $700.
(5) In early August 2013, Davis exchanged a series of text messages with Cavoniss Lewis, a friend who worked at a Sweetbay Market grocery store. Davis tried to convince Lewis to help them rob the store, and he assured her in one of his texts that “we have all the answers and tools to perform the job perfectly,” but she refused to participate. Thereafter, on August 20, 2013, Davis, Coffee, Patterson, and Scott robbed the Sweetbay Market without Lewis‘s help. The group used the shotgun and airsoft pistol for this robbery, which was confirmed by three employees who testified at the trial and video from the store‘s surveillance camera that was played to the jury. When Lewis learned of the robbery afterward, she felt uncomfortable and thought that she should say something. She contacted the store‘s human resources department, which, in turn, contacted the police. Lewis subsequently gave the police access to her phone and previous text messages with Davis.
(6) Finally, on September 7, 2013, Coffee, Davis, and Patterson (with help from Rogers, Scott, Tillman and others) robbed a Nike outlet at a mall in Ellenton, Florida. The group drove to the outlet mall in two separate cars and, upon arrival, they split up. Coffee walked past the Nike store to survey the area; Davis sat at a nearby table to get prepared; and Patterson walked through the parking lot toward the store with a dust broom, dust pan, and black plastic trash bag in order to avoid suspicion. Unbeknownst to them, they were under police surveillance at the time. While Patterson was on his way to the Nike store, one of the undercover officers on the surveillance team saw him walk right in front of the officer‘s car, sit down on the curb, put on gloves, and start to pull a mask or “something” over his face.4 The officer also noticed that Patterson was carrying what appeared to be a shotgun inside the plastic trash bag. Patterson saw the undercover officer watching him and got worried that “something was up,” so he went back to his car and put the dust broom, dust pan, and trash bag inside the trunk and, in his words, “replaced” the shotgun. At or around this point, there was a delay as the group began to have a disagreement about whether they should go forward with the robbery. Because there were so many people at the outlet mall and in the parking lot, some members of the group began to think it was a “bad idea” and wanted to back out.5 Davis and
The defendants were charged in a multicount indictment. Counts 1, 2, 4, 5, 6, and 8 charged robbery in violation of
Throughout the trial, the jury was repeatedly told that there were two groups of offenses. For example, the district court judge read the superseding indictment to the jury pool during voir dire, which clearly delineated the robbery and firearm offenses. Similarly, the government told the jury during its opening statement that the defendants were both charged with several counts of robbery and “two counts of using a firearm, brandishing a firearm in relation to or in furtherance of those robberies.” Counsel for Coffee likewise told the jury during opening statement that there were several counts, that the government had correctly “summarized” those counts, and that careful attention should be paid to each one as “[t]here are some charges of robbery of separate stores and there are some charges relating to the possession of firearms.”
The closing arguments to the jury similarly highlighted that the two firearm offenses in Counts 3 and 7 were separate and distinct from the robbery charges. For example, after discussing the robberies themselves, the government told the jury about “the two other crimes:”
[I]t‘s a separate federal crime for anyone to use a firearm in relation to or carry a firearm during and in relation to or possess a firearm in furtherance of a crime of violence. The elements you have to show there, the defendant committed a violent crime as charged in counts 3 and 7. There‘s two counts of using the firearm.
The government further told the jurors that for those two counts they had to find, inter alia, that a firearm was used during and in relation to the robberies that were charged in Counts 2 and 6, namely, the Levi‘s and Sweetbay Market robberies: “You have seen the videos of the Sweetbay robbery. The robbery progressed and everybody knew shotguns were going to be used from Levi‘s to Sweetbay. Each of the defendants actively participated in the violent crimes charged in Levi‘s and Sweetbay for the firearm counts.”
So you will see several instances referred to as 1951. That would be the robbery of Levi‘s, Oshkosh, McDonald‘s, Sweetbay, and Nike. All of those events are reflected in the verdict format as 1951.
There are also two charges in the indictment and two spaces on the verdict form. This would be count three that relates to Levi‘s and count seven. Those are completely different criminal offenses. They have different elements. They require different kinds of proof, and they are distinct and separate. ... So I‘m going to ask you to pay close attention as you review the verdict form, match it up with the indictment and consider the evidence as it relates to each offense and each element of each offense and see if indeed the government has met its burden of proof, in fact, the highest burden that exists in law.
Coffee‘s counsel then proceeded to further discuss the “six [robbery] counts that are effectively the same,” after which he told the jurors what was required for the two firearm offenses “in counts three and seven.”
At the end of closing arguments, the district court instructed the jury on the law to be applied and the elements that had to be proven, and it is undisputed that those instructions were correct. After setting forth the elements for the robbery counts, the district court instructed the jury that: “It‘s a separate federal crime for anyone to use a firearm in relation to or carry a firearm during and in relation to or possess a firearm in furtherance of a crime of violence.” The district court gave lengthy instructions for the two firearm charges “in counts three and seven“—and told the jury that those charges related to the robberies “charged in counts two and six of the indictment, respectively“—and each juror was given a written copy of the instructions, along with at least one copy of the superseding indictment. The district court also sent back two verdict forms (one for each defendant) that Davis, Coffee, and the government had jointly submitted. However, both verdict forms contained an error with one of the two firearm counts. Specifically, while Count 3 was correct, the verdicts mistakenly identified Count 7 as charging the defendants with “robbery, in violation of
Count Three of the Indictment
As to the offense of using a firearm during and in relation to a crime of violence, in violation of
18 U.S.C. § 924(c)(1)(A) ,We, the Jury, find the defendant [Davis/Coffee]:
Not Guilty _____ Guilty _____
Count Seven of the Indictment
As to the offense of robbery, in violation of
18 U.S.C. § 924(c)(1)(A) ,We, the Jury, find the defendant [Davis/Coffee]:
Not Guilty _____ Guilty _____
At the charging conference, the attorneys had been asked if they had objections to the verdict form as written, and they all said “no objection.” Neither the parties nor the district court noticed the error with Count 7 on the verdict forms before or while the jurors deliberated. During deliberations, the jurors asked the following question: “[Does] the offense of using a firearm which would violate
Three weeks after the trial, Davis filed a motion for judgment of acquittal with respect to Counts 1 through 7, or, alternatively, for a new trial.7 The district court denied the motion, holding that the verdict was supported by the evidence. At that point in time, neither Davis nor anyone else had noticed the problem with the verdict forms.
The United States Probation Office subsequently prepared the defendants’ presentence investigation reports (“PSRs“), and it failed to notice the verdict form error at that time as well. Indeed, the PSRs for both defendants represented that they had been convicted on Count 7 of “Possession and Use of a Firearm During and in Relation to a Crime of Violence” in violation of
Thereafter, at their sentencing hearings, the district court formally adjudged both defendants guilty of the counts on which they had been convicted, including “possession and use of a firearm during and in relation to a crime of violence” for Count 7. Once again, no one objected. The district court proceeded to sentence Coffee to concurrent terms of 150 months imprisonment on Counts 4, 5, 6, and 8, followed by a statutorily-mandated consecutive term of 84 months on Count 7, for a total of 234 months. Davis was sentenced to concurrent terms of 16 months on Counts 1, 2, 4, 5, 6, and 8, followed by a statutorily-mandated consecutive term of 84 months on Count 3, and a statutorily-mandated consecutive term of 300 months on Count 7, for a total of 400 months. Notably, the written judgments mirrored the verdict forms, which means they correctly reflected that both defendants had been convicted in Count 7 of violating
Almost two months later, on April 27, 2015, while the defendants’ appeal was pending—and before their briefs were filed—the district court learned of the error on the verdict forms and in the judgments. However, it was not the parties who discovered and advised the district court of the error; rather, it was brought to the district court‘s attention by the U.S. Probation Office. The district judge, sua sponte, invited the parties to advise if they
II.
The first thing we have to do is determine our standard of review. Do we review for plain error, or is our review de novo? To answer this question, it is important to make clear exactly what the defendants are challenging on appeal.
If the defendants were directly challenging their verdict forms and seeking reversal based on the errors therein, we would review for plain error because they did not object to the verdict forms “before the jury retire[d] to deliberate.”
III.
“It is clear in this Circuit that
The defendants argue that the amended judgment did not correct a clerical error, but rather it constituted a substantive alteration that prejudiced them. They contend that it was a “substantive alteration” as the jury may have been confused and thought they were finding the defendants guilty of “robbery” in Count 7; and, therefore, amending the judgments to reflect a
Preliminarily, what the defendants claim the jury found, i.e., “robbery, in violation of
First, it does not appear that the jurors were confused and thought they were convicting the defendants of “robbery” on Count 7. In the absence of any reason to believe otherwise (and none has been suggested), we presume the jury was paying attention when: (a) the district court read the superseding indictment to the jury pool during voir dire, and it correctly sets out that Count 7 was for “using a firearm during and in relation to” robbery of the Sweetbay Market; (b) both the government and defense counsel repeatedly told
Second, even if we were to agree with the defendants that the record is at least ambiguous with respect to what the jurors found on Count 7, there was no prejudice on the facts of this case. To sustain a conviction under
While we have not been able to locate any Eleventh Circuit case directly on point, the conclusion we reach today is consistent with our prior opinion in United States v. Diaz, supra, 190 F.3d at 1247. The defendant in that case was charged with conspiracy to distribute cocaine, and the verdict form correctly identified and described that offense. However, the jury was instructed on conspiracy to possess with intent to distribute cocaine and, after he was convicted, his written judgment reflected that erroneous charge. The defendant appealed the judgment, challenging its validity on the ground that the district court had convicted him of a crime that was not charged in the indictment. On review, this Court considered whether the error in the judgment was merely clerical, or whether it was something more. If the error was clerical, the case could be remanded with instructions for the district court to enter an amended judgment under
First, the court “reviewed all the other points of error as to the conviction argued on this appeal and [found] them to be without merit. But for this error the judgment would be affirmed.” Id. We have likewise considered all of the other arguments that the defendants here have raised and find them to be without merit. See supra note 9.
Third, Diaz said it was significant that “the thrust of the defense in this case was the lack of credibility of the government‘s witnesses. There was little, if any, suggestion that the evidence they gave did not satisfy the elements of the crime charged.” Id. That, too, is the same situation presented here. Davis and Coffee based their defense on the argument that the government‘s cooperating witnesses should not be believed because their testimony was at times inconsistent and they were seeking to curry favor with the government. There was (and is) no argument that the evidence at trial did not otherwise prove the elements of the firearm charge in Count 7.
Fourth, the Diaz court observed that “although the jury was not specifically charged on the indictment crime of conspiracy to distribute, there was no objection or request by defense counsel, although objections and requests were specifically invited by the court, so that cannot be claimed as error on this appeal.” Id. at 1252-53. Of course, that circumstance is also present here since the defendants not only said that they had “no objection” to the verdict forms when asked, but they actually submitted them.
Fifth, and importantly, the Diaz court stated:
[I]f the testimony of the government‘s witnesses is true, the evidence overwhelmingly proves that the defendant was guilty of [the charged offense of] conspiracy to distribute cocaine. Whether that testimony was true was squarely put to the jury by both the instructions of the court and the argument of both counsel. It was the jury‘s job to determine who was telling the truth, and who was not.
Id. at 1253. Again, that is the same situation in this case. There was (and can be) no argument that if the jurors believed that the cooperating co-defendants told the truth to the extent they testified that Davis and Coffee participated in the Sweetbay Market robbery (and, with their verdict, they obviously did believe that testimony), then the evidence overwhelmingly and irrefutably establishes that the defendants were guilty of the firearm offense charged in Count 7.
For its sixth and seventh reasons, Diaz noted that both of the crimes at issue there (conspiracy to distribute cocaine and conspiracy to possess with the intent to distribute cocaine) were charged as conspiracies under the same statute and with the same underlying substantive offense statute, and they thus implicated the same sentencing guidelines; consequently, the difference between the two offenses, from a practical standpoint, was “a distinction without a difference.” See id. Seizing on this portion of the Diaz opinion, Coffee argues in his reply brief that prejudice can be inferred (and, therefore, the error was not merely clerical) because robbery and using a firearm during and in relation to a crime of violence are controlled by different statutes and are not subject to the same sentencing guidelines.14 And, further, robbery and using a firearm during and in relation to a crime of violence require proof of different and separate elements
Ultimately, if it was proper to use
IV.
For all these reasons, the judgment of the district court is AFFIRMED.
ROGER VINSON
UNITED STATES DISTRICT JUDGE
Notes
Their sentencing arguments fare no better. The defendants contend that their sentences were substantively unreasonable as they received longer sentences than their co-defendants (all of whom pled guilty); Coffee maintains that the district court improperly calculated his advisory guideline range by applying the five-level enhancement for possession of the Taurus pistol in the getaway car during the Nike robbery and for the shotgun that Patterson took out of the trunk, but then put back in, during the course of that crime; and Davis argues that the district court erred in “stacking” his two
Despite this trial record, however, the defendants maintain that there is evidence of jury confusion. Specifically, they note that the jury‘s question during deliberations asked about the “offense” of using a firearm in violation of Section 924, rather than using the plural “offenses.” They suggest that this shows the jurors were confused and thought there was only one Section 924 charge. We suspect the defendants are reading too much into the phrasing of the question. Indeed, the jurors may have begun the question “[does] the offense of using a firearm” because they knew that whatever answer the district court gave would obviously apply to both charged crimes, and, consequently, the alternative “do the offenses of using a firearm” was unnecessary. Regardless, even if we were to agree that the phrasing of the question indicated confusion on the jury‘s part, as we will discuss next, the defendants would still not be entitled to relief on the facts presented.