UNITED STATES OF AMERICA v. JEROME KIEFFER; ARMSTEAD KIEFFER
No. 19-30225
United States Court of Appeals for the Fifth Circuit
March 19, 2021
FILED March 19, 2021 Lyle W. Cayce Clerk
Unitеd States Court of Appeals Fifth Circuit FILED March 19, 2021 Lyle W. Cayce Clerk
UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus
JEROME KIEFFER; ARMSTEAD KIEFFER, Defendants-Appellants.
Appeals from the United States District Court for the Eastern District of Louisiana USDC No. 2:17-CR-114-2
Before HAYNES, HIGGINSON, and OLDHAM, Circuit Judges.
Jerome Kieffer and his father, Armstead Kieffer, appeal their convictions for offenses relating to two armored truck robberies. For the reasons set forth below, we AFFIRM the judgments of the district court.
I. Background
Jerome, Armstead, and a third man, Deltoine Scott, were charged with multiple offenses in connection with an October 11, 2015 armed robbery of an armored truck as it was servicing a Chase Bank ATM in New Orleans, and a May 31, 2017 attempted robbery of an armored truck as it was servicing a Campus Federal Credit Union ATM in New Orleans. According to the Government, Jerome and Scott were the gunmen during both robberies while Armstead knowingly received money from the 2015 robbery and acted as a lookout during the 2017 robbery. Jerome and Armstead were tried together, while Scott, who had entered into a plea agreement with the Government, testified against them. Besides Scott, the Government called numerous other witnesses аnd presented over 2800 pages of exhibits, including photographs, surveillance footage, and cell phone data.
After a five-day trial, the jury convicted Jerome of conspiracy to commit bank robbery in violation of
During the trial, the district court permitted the jurors to submit written questions for the witnesses. Once submitted, the district court would modify the questions to comply with the Federal Rules of Evidence, and then would pose them directly to the witnesses. During the first two days of the trial, the district court did not permit counsel to review the jurors’ questions prior to asking them. However, after repeated objections from defense counsel, the district court agreed to allow counsel to review and object to questions prior to asking them. Over the course of the trial, the jurors submitted roughly fifty questions to the district court, of which approximately twenty-one were actually posed to witnesses.
Prior to sentencing, Jerome and Armstead filed separate motions for a new trial on the basis that the district court erred in its handling of the jurors’ questions. The
II. Discussion
On appeal, Jerome and Armstead each argue that there was not sufficient evidence to support their convictions and that the district court erred by denying their motion for a new trial. Additionally, Jerome has filed a letter under
A. Sufficiency of the Evidence
Jerome and Armstead preserved their challenges to the sufficiency of the evidence by moving for a judgment of acquittal at the close of the Government‘s case, which was the close of all evidence.1 We review their preserved claims de novo, according “substantial deference to the jury verdict.” United States v. Suarez, 879 F.3d 626, 630 (5th Cir. 2018). Under this standard, we “must affirm a conviction if, after viewing the evidence and all reasonable inferences in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Vargas-Ocampo, 747 F.3d 299, 301 (5th Cir. 2014) (en banc).
Jerome and Armstead both contend that their convictions impermissibly depend on Scott‘s unreliable testimony. Specifically, Jerome asserts that Scott‘s testimony is the only evidence that identifies him as a participant in the 2015 and 2017 robberies. Similarly, Armstead argues that there is no evidence apart from Scott‘s testimony supporting his convictions for conspiracy to commit bank robbery, attempted armed bank robbery resulting in death, and causing death through use of a firearm.
Assuming arguendo that these convictions depend on Scott‘s tеstimony, a conviction “may be sustained if supported only by the uncorroborated testimony of a coconspirator ... unless the testimony is incredible or insubstantial on its face.” United States v. Bermea, 30 F.3d 1539, 1552 (5th Cir. 1994); see also United States v. Garcia Abrego, 141 F.3d 142, 155–56 (5th Cir. 1998) (explaining that such testimony is sufficient “so long as it does not defy the laws of nature or relate to matters that the witness could not have observed“). Whatever the problems with Scott‘s credibility, his account was neither physically impossible nor outside his powers of observation; the jury decides credibility of witnesses, not the appellate сourt. See United States v. Delgado, 256 F.3d 264, 273-74 (5th Cir. 2001) (noting that “we do not evaluate the weight of the evidence or the credibility of the witnesses“). Thus, Scott‘s testimony alone was sufficient to support the Kieffers’ convictions.
Armstead also challenges the sufficiency of the evidence supporting his conviction for making a false material statement. The basis for this conviction was Armstead‘s statement to the grand jury that he did not know Jerome‘s whereabouts at 4:30 in the afternoon of May 31,
Finally, Armstead challenges his conviction for being a felon-in-possession of a firearm based on Rehaif v. United States, in which the Supreme Court held that, to obtain a conviction under
B. Motions for a New Trial
As they did below, Jerome and Armstead contend that a new trial is warranted
District courts have discretion over “[t]he proper handling of juror questions.” United States v. Callahan, 588 F.2d 1078, 1086 n.2 (5th Cir. 1979). When exercising their discretion, courts must be cognizant of the risks of permitting such questions, including that “jurors can find themselves removed from their appropriate role as neutral fact-finders,” and that “there is a certain awkwardness for lawyers wishing to object to juror-inspirеd questions.” United States v. Collins, 226 F.3d 457, 461 (6th Cir. 2000); cf. United States v. Ajmal, 67 F.3d 12, 14-15 (2d Cir. 1995) (holding, in an egregious case, that the district court abused its discretion by repeatedly encouraging jurors to pose questions to witnesses, including the defendant, thereby “altering the role of the jury from neutral fact-finder to inquisitor and advocate“). Ultimately, “whether juror questioning constitutes an abuse of discretion is a factually intense inquiry requiring a case-by-case analysis.” United States v. Richardson, 233 F.3d 1285, 1291 (11th Cir. 2000).
In Callahan, we found no abuse of discretion where the district judge asked a single written question submitted by a juror as to a factual matter after determining that the quеstion was not “legally improper,” but did not provide counsel an opportunity to object outside the presence of the jury. 588 F.2d at 1086. Because the district court here followed an identical procedure, we cannot say that its method was erroneous.5 See Jacobs v. Nat‘l Drug Intel. Ctr., 548 F.3d 375, 378 (5th Cir. 2008) (noting that “one panel ... may not overturn another panel‘s decision, absent an intervening change in the law,
such as by a statutory amendment, or the Supreme Court, or our en banc court“). Further, although the jurors submitted many questions in this case, a large volume оf questions does not by itself justify a new trial. See DeBenedetto ex rel. DeBendetto v. Goodyear Tire & Rubber Co., 754 F.2d 512, 517 (4th Cir. 1985) (holding that the defendants were not prejudiced by the district court‘s allowance of ninety-five juror questions because the court could “perceive no bias in any of the questions“).
Nonetheless, district courts should consider following an established procedure such as that set forth by the D.C. Circuit in United States v. Rawlings:
First, the court should inform counsel in advance that juror questions will be allowed, should require that all juror questions be submitted in writing, should review them with counsel out of the presence of the jury (evaluаting objections, if any) and then, if it finds the
question proper, should itself ask the question of the witness. In addition, before any questioning begins, the court should instruct the jurors about the function of the questioning procedure in clarifying factual (not legal) issues and should direct them to remain neutral and, if the judge fails to ask a particular question, not to take offense or to speculate as to the reasons therefor or what answer might have been given. Then, after a particular witness has responded to the questions, the court should permit counsel to re-question the witness. We also think it prudent to repeat the instructions in the closing charge.
522 F.3d 403, 408 (D.C. Cir. 2008) (citations omitted).
Regardless of the specific procedure used by the district court, the key question here is whether any inappropriate questions were asked or any prejudice to the defendants ensued. Importantly, despite numerous pages of briefing on this issue, not one single question is identified by either defendant as causing prejudice. After reviewing all of the questions submitted by the jurors, we see no indication that any juror abandoned his or her role as a neutral fact-finder. Consequently, we conclude that the district court did not abuse its discretion in denying the Kieffers’ motions for a new trial.
C. § 924(c) Conviction
Under
Jerome claims that his
Accordingly, we AFFIRM the judgments of the district court.6
ANDREW S. OLDHAM, Circuit Judge, concurring in the judgment:
I do not understand why the majority applies de novo review to Armstead‘s unpreserved claim under Rehaif v. United States, 139 S. Ct. 2191 (2019); see ante, at 5–6. De novo review applies to preserved errors-because we want defendants to preserve errors, and we want district courts to address
I.
We apply de novo review to preserved errors. We do that for at least two distinct reasons. The first is definitional: When a defendant preserves a legal error and allows the district court to adjudicate it, we review it de novo-that is, again or afresh. See WEBSTER‘S NEW INTERNATIONAL DICTIONARY 699 (2d ed. 1934; 1950) (defining de novo as “afresh“). We step into the shoes of the district court; apply the same legal standards as the district court; and conduct the legal analysis again. See, e.g., Playa Vista Conroe v. Ins. Co. of the W., --- F.3d ---, 2021 WL 836715, at *2 (5th Cir. Mar. 5, 2021). It makes no sense to apply “de novo review” to a question unreviewed by the district court; that is neithеr “de novo” nor “review.” Rather, that‘s “tabula rasa first view.” But cf. Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005).
Judicial efficiency is the second reason we apply de novo review only to preserved errors. Our system operates most efficiently when errors are raised (and hopefully) remedied at the first available opportunity. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 88-90 (1977). Of course, any particular defendant-quite understandably-is more concerned with his personal victory than with the system‘s efficiency. So there is a natural litigation instinct to lie behind the log and save one or more objections as get-out-of-jail cards that can be played on appeal if necessary. See id. at 89. De novo review is the judicial system‘s answer to this problem: We offer de novo review on appeal-the most beneficial a defendant-appellant could hope for-as a carrot to incentivize the defendant to object in the trial court and hence to promote judicial efficiency over parochial stratagems.
Plain error is the stick. The whole point of plain-error review is to make it more difficult to win on appeal using an unpreserved error. See, e.g., Puckett v. United States, 556 U.S. 129, 134 (2009). In some areas-Guidelines errors being the most obvious-we‘ve softened plain error to the point that it provides little or no deterrent to litigants who would sit on their rights in the district court. See United States v. del Carpio Frescas, 932 F.3d 324, 333-44 (5th Cir. 2019) (Oldham, J., concurring). But generally, plain-error review continues to make it much harder-and sometimes impossible-to prevail on appeal using an unpreserved error. See United States v. Jackson, 549 F.3d 963, 977 (5th Cir. 2008) (“Under plain error, if a defendant‘s theory requires the extension of precedent, any potential error could not have been plain.” (quotation omitted)).
Given that preservation of error is the line between de novo review and plain-error review, you might reasonably wonder what it takes to preserve an error. In general, the litigant attempting to preserve an error must focus the decisionmaker‘s mind on the specific legal problem, so the error (if there is one) can be corrected. As we put it more than a century ago: “The court‘s attention [must be] so
It necessarily follows that a general declaration of “insufficient evidence!” is not a meaningful objection. It challenges no particular legal error. It identifies no particular factual deficiency. It does nothing to focus the district judge‘s mind on anything. It‘s the litigator‘s equivalent of freeing the beagles in a field that might contain truffles. Cf. del Carpio Frescas, 932 F.3d at 331 (“Judges are not like pigs, hunting for truffles buried in the record.” (quotation omitted)). Rather, if the defendant wants to preserve an insufficient-evidence challenge for de novo review, he must make a proper motion under
Take for example our decision in United States v. Herrera, 313 F.3d 882 (5th Cir. 2002) (en banc) (per curiam). That case concerned a conviction under
In accordance with normal rules of error-preservation, we applied de novo review to the preserved error-and only the preserved error. We held: “[w]here, as here, a defendant asserts specific grounds for a specific element of a specific count for a
Or take Huntsberry. In that case a federal jury convicted Huntsberry for possession of a firearm by a felon in violation of
We nonetheless affirmed Huntsberry‘s conviction for two reasons. First, Huntsberry stipulated at trial that he had a prior felony conviction-thus eliminating the Government‘s burden to prove it. See 956 F.3d at 282 n.5. And second, in accordance with Herrera, we held that Huntsberry could get de novo review only for the insufficiency arguments he preserved in the district court. See id. at 282. Thus, Huntsberry could get de novo review of whether the Government proved he knowingly possessed the firearm. But Hunstberry
II.
Armstead‘s case is on all fours with Huntsberry. Just like Huntsberry, Armstead filed a specific
The majority nonetheless premises its de novo approach on United States v. Staggers, 961 F.3d 745 (5th Cir. 2020); see ante, at 5–6. It‘s true that Staggers applied de novo review. See 961 F.3d at 754. But its decision to do so highlights a deep and puzzling tension in our error-preservation precedent.
According to the Staggers court, the defendants in that case only “made general objections to the sufficiency of the evidence,” ibid. —that is, they merely said “the evidence is insufficient.” The result is a counterintuitive appellate jackpot: By objecting to nothing in particular, the defendants preserved everything in general. And by calling the district judge‘s attention to no particular error, the defendants preserved the right to call our attention to every conceivable error imaginable under the sun-including errors under Rehaif, which had not even been decided at the time of trial.
There are at least four problems with that. First, Staggers is inapplicable on its own terms. That decision purported to apply de novo review only where the defendant made a “general objection to the sufficiency of the evidence.” And that‘s not what Armstead chose to do. He instead made a specific objection, in a written
Second, even if Staggers applied, its rule turns error preservation upside down. The whole point of error preservation and appellate standards of review is that we want parties to raise their claims in the district court. But under Staggers, why would any reasonable defendant object to anything? The only “good”
Third, Staggers is premised on a misunderstanding of precedent. It based its de novo review on a single sentence in United States v. Daniels, 930 F.3d 393 (5th Cir. 2019). See Staggers, 961 F.3d at 754 (“‘When a defendant makes a general sufficiency-of-the-evidence challenge, we review the sufficiency of the evidence suрporting a conviction de novo.‘” (quoting Daniels, 930 F.3d at 402)). Daniels in turn based its assertion on a single sentence in United States v. Brown, 727 F.3d 329, 335 (5th Cir. 2013). See Daniels, 930 F.3d at 402 (“‘When a defendant makes a general sufficiency-of-the-evidence challenge, we review the sufficiency of the evidence supporting a conviction de novo.‘” (quoting Brown, 727 F.3d at 335)). But Brown did not involve a general sufficiency-of-the-evidence challenge at all; rather, the defendants’
Fourth, Staggers is premised on a mistake of fact. The court asserted that one of the defendants in that case-Morrison—made only a “general objection[] to the sufficiency of the evidence.” Staggers, 961 F.3d at 754. In reality, however, Morrison made a very specific and non-general objection to the sufficiency of the evidence. His attorney argued, inter alia, that “[t]here has certainly been insufficient facts, evidence, and testimony to establish thаt Mr. Morrison had the required intent to participate in a conspiracy to distribute either 500 grams of powder cocaine, or any powder cocaine.” The same attorney also argued:
The specific date on [count 2 of the indictment against Morrison] is that a phone call was allegedly made on May 1st of 2015, and that‘s the date that is listed in the indictment. I do not believe the government presented any evidence of any wiretap or phone call that took place on May 1st, and so I wоuld say that, as a matter of law, there was no evidence presented as to any calls on that date.
That is far, far from a generalized objection. Contra ante, at 6 (ignoring this particularized objection); id. at 3 n.1 (doing the same for Armstead‘s particularized objection).
In short, Staggers was wrong on the facts. It was wrong on the law. It turns error preservation upside down by directing defendants not to specify the basis for their
* * *
The Supreme Court has been very clear: “The trial is the main event at which a defendant‘s rights are to be determined and not simply a tryout on the road to appellate review.” Davila v. Davis, 137 S. Ct. 2058, 2066 (2017) (quotations omitted). Our court has been equally clear but diametrically opposed: Whatever you do, hide the basis for your objections and pull your punches at trial, so you can maximize your chances for success on appeal. In my view, our trial courts deserve bettеr.*
ANDREW S. OLDHAM
CIRCUIT JUDGE