UNITED STATES OF AMERICA v. LANCE CANNON, VINCENT HOLTON
No. 16-16194
United States Court of Appeals for the Eleventh Circuit
February 3, 2021
D.C. Docket No. 1:15-cr-20923-UU-1
[PUBLISH]
Appeal from the United States District Court for the Southern District of Florida
Before WILLIAM PRYOR, Chief Judge, HULL and MARCUS, Circuit Judges.
After a jury trial, Lance Cannon and Vincent Holton appeal their convictions for conspiracy to commit Hobbs Act robbery, conspiracy to possess with intent to distribute cocaine, using and carrying a firearm during a crime of violence and a drug trafficking crime, and possession of a firearm by a convicted felon. Cannon and Holton, bringing guns with them, participated in a plan to rob a stash house containing 18 kilograms of cocaine. As it turns out, one participant was an undercover detective and the stash house was fake. On appeal, Cannon and Holton raise multiple issues as to their convictions. After careful review, and with the benefit of oral argument, we affirm.
I. FACTS
The trial evidence included witness testimony as well as audio, and in some cases video, recordings of seven meetings as detailed below.
A. June and July 2015 Meetings
The Drug Enforcement Administration (“DEA“) encountered Cannon and Holton through its investigation of a target named Owen Nunez. The DEA opened its investigation into Nunez based on information supplied by a confidential informant (“CI“) named Miguel Gonzalez, who knew Nunez was a drug dealer. Gonzalez had prior felony convictions, made a living as a CI, and worked for multiple federal law enforcement agencies.
The DEA arranged for the CI to meet Nunez on June 22, 2015, to discuss future drug transactions. On his own initiative, Nunez invited two other individuals—Cannon and an unknown associate. During the meeting, Cannon discussed with the CI Gonzalez the potential sale of 30 kilograms of cocaine at a price of $28,000 per kilogram.
On June 24, 2015, Nunez, Cannon, and the CI Gonzalez met again to discuss the drug deal. This time, Cannon brought Holton with him. Cannon introduced Holton as someone who could transport drugs for the CI if needed, stating, “wherever you want it to go, he drives.” Cannon also told the CI: “Anything let me tell you something you ever need . . . come, come to me.” Cannon indicated he was talking about transportation. Cannon also said that the CI could come to him if anybody ever “play[ed] with [him]“—that is, interfered with his drug dealings—or was “fucking with [his] shit.” Cannon confirmed that the cocaine price was $28,000 per kilogram.
On July 16, 2015, the CI met again with Nunez, Cannon, and Holton. The CI asked Cannon and Holton for a one-kilogram sample of the cocaine prior to the deal because the CI was going to be carrying so much money and wanted to “feel . . . safe.” Holton offered to bring “everything to . . . the place,” but the CI indicated he just wanted a one-kilogram sample. Later, Cannon and Holton had to “do the math” on 30 kilograms of cocaine at $28,000 per kilogram, which came out to $840,000. After Cannon and Holton left the meeting, the CI told Nunez “these people are liars” and said he had a “bad feeling” about the transaction.
After the third meeting, the DEA stopped investigating Cannon and Holton based on “red flags” indicating they were going to rob the CI. One red flag was that Cannon and Holton did not seem to know how much money they were to receive as a result of the drug deal.
B. October 23 and 28, 2015 Meetings
Subsequently, the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF“) took over the investigation from the DEA. The CI informed the ATF that Cannon was interested in committing a home invasion robbery for drugs. The CI had placed a series of recorded phone calls to Cannon and prefaced some by noting for law enforcement that the ensuing call would concern a cocaine robbery. During the calls, however, the CI did not specifically mention a robbery to Cannon. Instead, the CI referred to the need to talk soon about a potential job and the possibility of working together.
After receiving the CI‘s tip that Cannon was interested in committing a robbery, the ATF arranged for a meeting on October 23, 2015, between Cannon, the CI, and Kenneth Veloz—an undercover (“UC“) detective with the Miami-Dade Police Department and ATF task force officer. The October 23 meeting took place in a restaurant parking lot. The CI introduced the UC detective to Cannon as his godson. The UC presented himself as a disgruntled drug courier who was not being paid what he was owed. The UC proposed to Cannon stealing 10 to 20 kilograms of cocaine from his employers’ stash house. Cannon said he had a “team” that could assist with the job.
The UC detective informed Cannon that at least one of the stash house guards was “always strapped,” or armed, and warned Cannon that guns would be involved. Cannon discussed with the CI the need to meet after the robbery to split up the stolen cocaine. When the UC detective expressed concern that the stash house guards would not “give up just like that,” Cannon promised the UC that the guards were going to “lay the fuck down . . . [o]ne way or another.” The UC asked Cannon if he had the “gear,” meaning the weapons and equipment necessary to do the robbery, and Cannon told him not to worry.
On October 28, 2015, Cannon met again with the CI Gonzalez and the UC detective.
Holton asked whether the guard who would open the door for the UC detective would be “strapped.” The UC responded that it depended, but that this individual would not have a weapon in his hand. Holton said that if the individual reached for a weapon, he and Cannon would have to protect each other‘s lives, but that he would prefer to “keep it clean” and “leave smelling like a rose.” Holton also expressed that this was not a new situation for him and that he had more than 20 years’ experience.
Later, the UC detective indicated that Cannon and Holton should tell him if the robbery was something they could not handle. Holton responded that it was a “simple job” because the UC had “inside info.” Holton also said it was an “easy” job but only if it was “worth it,” and he asked the UC what “the take” was. The UC told him there would be 10 to 20 kilograms of high-quality, pure cocaine.
The parties then discussed certain logistics. Holton told the UC detective he would need to give him a sign when it was time to rush the door. The UC indicated he would put his glasses up. Holton said he would enter first and throw the UC out of the way, with Cannon following behind. Cannon added that he would aim his gun at the UC. The UC offered to provide Cannon and Holton a van with a trap door in it. Holton suggested that he and Cannon arrive at the robbery dressed as DEA agents and that this was “the best way to do it.” Holton later asked the UC if he had any “clean tools“—guns not previously used in a crime. The UC said he did not deal with guns, to which Holton responded, “[w]e got it.”
Holton indicated that after the robbery he wanted to quickly unload the stolen cocaine and dump his gun. Cannon told the UC: “[T]he only thing my mind [is] focused on, is making sure you go in smelling like a rose and you come out [the same]—that‘s my job.” Cannon said that he and Holton would “take care of everything else.” Cannon and Holton added that if the UC at any point felt threatened, they would “just go ahead and handle that problem.”
C. November 5, 2015 Meeting
On November 5, 2015, Cannon, Holton, the CI, and the UC detective met again and continued going over the logistics of the robbery. Holton indicated that he and Cannon might want to use the van the UC had proposed. Holton discussed with the UC the possibility that there might be more drugs in the stash house than the UC planned to pick up from his employers. If that was the case, Holton said, they were going to “take all of that shit,” but split everything fifty-fifty with the UC. The UC again indicated that at least one guard would be armed. Cannon responded they would take it as if everyone was “strapped.” The UC asked Cannon and Holton if they were good with the plan and said it was “no sweat” if they could not handle it. Holton laughed and said if things did not look good, they would let the UC go about his business.
Holton then stated that he and Cannon would wait in a “blind spot” while the UC went to the door of the stash house. Holton and Cannon would then quickly follow behind. Holton said that they were going to tie up the guards—and the UC, Cannon added—and take their guns and car keys. Cannon and Holton would do a thorough search of the stash house to make sure
D. November 13, 2015 Robbery
On November 13, 2015, the day the robbery was to occur, Cannon, Holton and an individual named Nathaniel Stubbs met with the CI a final time. The UC detective was not present. The CI confirmed there would be 18 kilograms of cocaine in the stash house. The CI offered to take the guns that Cannon and Holton had brought with them and put them in his vehicle. But Cannon and Holton declined the CI‘s offer. Cannon, Holton, and Stubbs then followed the CI in a pickup truck to a warehouse to retrieve the van and proceed to the stash house. Upon their arrival at this second location, Cannon, Holton, and Stubbs were arrested. Two firearms—an AK-47 style rifle and AK-47 style pistol—along with ammunition and latex gloves were later recovered from Cannon and Holton‘s pickup truck.
II. PROCEDURAL HISTORY
A. Indictment
A federal grand jury returned an indictment against Cannon and Holton, charging them with: (1) conspiracy to commit Hobbs Act robbery, in violation of
B. Pretrial Motions
In 2016, Cannon and Holton jointly filed pretrial motions. First, they filed a discovery motion. They contended that the ATF and Federal Bureau of Investigation (“FBI“) targeted persons of color in phony stash house rip offs and this resulted in the U.S. Attorney‘s Office for the Southern District of Florida “selectively prosecut[ing]” persons of color. Cannon and Holton sought, inter alia, a list of fake stash house robbery cases brought by that particular U.S. Attorney‘s Office going back ten years, with each defendant‘s race.
Second, Cannon and Holton filed a motion to dismiss the indictment based on the government‘s outrageous conduct in creating the fake robbery scheme, in violation of the Fifth Amendment‘s Due Process Clause.
Third, Cannon and Holton filed a motion to dismiss the
After a hearing and reviewing some of the recorded meetings, the magistrate judge issued a written report and recommendation (the “Report“). The Report recommended
To the extent the motion to dismiss was based on racial profiling, however, the Report recommended that it be held in abeyance pending the district court‘s ruling on the related discovery motion. The magistrate judge also recommended denying the motion to dismiss Count 3 because Hobbs Act robbery qualified as a crime of violence under
C. District Court‘s Orders
During a calendar call on April 27, 2018, the district court addressed pretrial matters and denied the defendants’ discovery motion. Later, the district court entered an order: (1) adopting the Report; (2) denying the motion to dismiss, to the extent it was based on the government‘s creating the robbery scheme; and (3) denying the motion to dismiss the Hobbs Act robbery conspiracy predicate in Count 3. In a separate order, the court denied the motion to dismiss, to the extent it was based on the alleged targeting of minorities, and denied the amended motion for discovery.2
D. Trial and Verdict
At trial, the government‘s four witnesses were: (1) Joseph Bryson, the DEA agent who worked as the CI‘s handler and arranged the meetings between the CI and Nunez; (2) Kenneth Veloz, the UC detective who participated in the meetings about the stash house robbery; (3) Miguel Gonzalez, the CI; and (4) Adrian Halley, a criminal investigator and ATF special agent, who collected the evidence from the defendants’ truck at the time of arrest.
The government also introduced the audio and video recordings and written transcripts of all seven in-person meetings. Bryson, Veloz, and Gonzalez testified as to the meaning of certain phrases and terminology and described what was taking place during the recordings.
DEA agent Bryson also testified how the investigation of Nunez had led to Cannon and Holton, who were initially unknown to law enforcement. Bryson explained that the DEA eventually stopped investigating Cannon and Holton because it believed they were going to rob the CI Gonzalez.
During his testimony, UC detective Veloz repeatedly mentioned how he had set out to “paint a violent situation” in describing the stash house robbery to Cannon and Holton, to test whether they had “the desire and the will” to go through with the plan. Veloz testified that: (1) he offered Cannon and Holton several opportunities to opt out of the plan; (2) he did not offer to provide any guns; and (3) the fact Cannon
Gonzalez testified about the meetings, his background as a CI, and how he earned money in this role. On cross-examination, Gonzalez admitted that it was his idea to present the idea of a stash house robbery to law enforcement because Cannon previously told him that he could “do anything” the CI needed.
Halley, the ATF investigator, testified as to the gloves, firearms, ammunition, and other items recovered from Cannon and Holton‘s truck.
On the second day of trial, the district court learned that a juror—Tameka Spicer—knew Holton‘s wife. Spicer explained that she knew Holton‘s wife because Spicer did her hair “pretty often.” Spicer stated that they never discussed Holton or the case and that her ability to be fair and impartial would not be affected. After hearing the parties’ arguments, the court dismissed Spicer because of her financial relationship to Holton‘s wife.
After the government rested, Cannon and Holton moved for a judgment of acquittal, which the district court denied. Cannon and Holton did not present any evidence.
The district court also denied Cannon and Holton‘s request for an entrapment instruction. The court did give a “theory of defense instruction,” that: (1) each defendant claimed he did not possess willful intent to commit a crime; (2) willfulness or knowledge is an element of each crime; and (3) if a defendant did not possess the requisite willful intent to commit a crime, or “you have a reasonable doubt” about whether the defendant had the required intent and willfulness to commit a crime, “you must find the Defendant not guilty.”
The jury found Cannon and Holton guilty on all counts. Later, the district court denied Holton‘s motion for a new trial.
E. Sentencing
The district court sentenced both Cannon and Holton to: (1) 240 months’ imprisonment on the Hobbs Act robbery conspiracy conviction (Count 1) and drug conspiracy conviction (Count 2), to run concurrently; (2) 120 months’ imprisonment on the felon in possession convictions (Count 4 for Cannon and Count 5 for Holton), to run concurrently; and (3) a consecutive 60 months’ imprisonment on their
III. DISCOVERY MOTION
On appeal, Holton argues that the district court erred in denying his motion for discovery as to his selective prosecution claim.3 Our consideration of Holton‘s discovery motion as to his selective prosecution claim is governed by well-settled and binding precedent in United States v. Armstrong, 517 U.S. 456 (1996), and United States v. Jordan, 635 F.3d 1181 (11th Cir. 2011).
Federal prosecutors have “broad discretion” in enforcing criminal laws and a “presumption of regularity” attaches to
Nevertheless, prosecutorial discretion is subject to “constitutional constraints.” Id. (quotation marks omitted). “One of these constraints, imposed by the equal protection component of the Due Process Clause of the Fifth Amendment, is that the decision whether to prosecute may not be based on an unjustifiable standard such as race, religion, or other arbitrary classification.” Id. (citations and quotation marks omitted).
Because of the presumption of regularity, a defendant who seeks to establish a claim of selective prosecution in violation of the Constitution carries a “demanding” burden. United States v. Smith, 231 F.3d 800, 807 (11th Cir. 2000) (quoting Armstrong, 517 U.S. at 463); Jordan, 635 F.3d at 1188. “[T]o dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present clear evidence to the contrary.” Smith, 231 F.3d at 807 (emphasis omitted) (quoting Armstrong, 517 U.S. at 465); Jordan, 635 F.3d at 1188. This requires a showing “that the federal prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose.” Smith, 231 F.3d at 808 (quoting Armstrong, 517 U.S. at 465); Jordan, 635 F.3d at 1188.
Discovery on a selective prosecution claim is subject to “a correspondingly rigorous standard.” Armstrong, 517 U.S. at 468. It requires a defendant to produce “some evidence tending to show the existence of the essential elements” of a selective prosecution claim—discriminatory effect and discriminatory purpose. Jordan, 635 F.3d at 1188–89 (quoting Armstrong, 517 U.S. at 468) (concluding defendant was not entitled to discovery on selective prosecution claim under Armstrong); United States v. Quinn, 123 F.3d 1415, 1425–26 (11th Cir. 1997) (same). To establish discriminatory purpose, a defendant must show the decisionmaker “selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Jordan, 635 F.3d at 1188 (quoting Wayte v. United States, 470 U.S. 598, 610 (1985)).
To establish discriminatory effect in a race-based selective prosecution claim, the defendant “must show that similarly situated individuals of a different race were not prosecuted.” Smith, 231 F.3d at 808 (quoting Armstrong, 517 U.S. at 465); Jordan, 635 F.3d at 1188. A “similarly situated” person in the selective prosecution analysis is one who engaged in the same type of conduct as the defendant “and against whom the evidence was as strong or stronger than against the defendant.” Smith, 231 F.3d at 810–11 (affirming the denial of motion to dismiss based on selective prosecution where defendants failed to identify similarly situated comparators who engaged in the same type and quantity of voting crimes); United States v. Brantley, 803 F.3d 1265, 1271–73 (11th Cir. 2015) (affirming the denial of motion to dismiss based on selective prosecution where sole comparator‘s conduct was materially different from defendant‘s).
Statistical data reflecting the treatment of only one particular group cannot satisfy the discriminatory effect prong because it fails to show that similarly
The same was true in Armstrong. There, the Supreme Court held that defendants were not entitled to discovery as to selective prosecution where the defendants provided an affidavit from the Federal Public Defender‘s office, which said that in all of the 24 relevant cases it had handled in a particular year, all defendants had been black. Armstrong, 517 U.S. at 459. This was not sufficient to allow for discovery because the evidence “failed to identify individuals who were not black and could have been prosecuted for the offenses for which respondents were charged, but were not so prosecuted.” Id. at 470 (emphasis added).
So too here. Nothing about the evidence that defendants have offered is distinguishable from Armstrong or Jordan. Here, the defendants failed to proffer evidence of discriminatory effect. See Armstrong, 517 U.S. at 470; Jordan, 635 F.3d at 1188–89. The only evidence that Cannon and Holton proffered in support of the discovery motion was: (1) a USA Today article reporting that “[a]t least 91% of the people agents have locked up” as a result of stash house stings were racial or ethnic minorities and (2) data from the Federal Public Defender‘s Miami office showing that out of the 60 cases involving a stash house that the office had handled since 2001, all 87 defendants were either black or Hispanic in 25 cases that employed the same “disgruntled drug courier” scenario as this case.
Under Armstrong and Jordan, this statistical evidence fails to establish discriminatory effect because it does not demonstrate that similarly situated defendants of other races could have been prosecuted for the same offenses but were not. See Armstrong, 517 U.S. at 470; Jordan, 635 F.3d at 1188–89. The USA Today article and statistics from the Federal Public Defender‘s office in Miami say nothing about whether the government declined to prosecute similarly situated non-minority individuals in reverse stash house stings. Furthermore, the statistics from the Federal Public Defender‘s Miami office cover 25 of the 60 stash house cases that office handled within that district. Even if those 25 cases represent every reverse stash house sting out of the 60 cases, these statistics do not include similar cases in the district not handled by the Federal Public Defender‘s Miami office—they represent only a “fraction of the total number of prosecutions,” as the government puts it. And even if they did represent every similar case in the district, the statistics would still tell us nothing about similarly
Because defendants failed to establish discriminatory effect, we need not address discriminatory purpose. In any event, there is no evidence of discriminatory purpose. Law enforcement did not initially target Cannon and Holton. Instead, they came to law enforcement‘s attention through the DEA‘s investigation of Owen Nunez, a drug dealer who brought Cannon to a meeting, and then Cannon brought Holton to a later meeting. The ATF continued the investigation only after Cannon had offered to assist the CI in the future if he needed.
For all these reasons, the district court did not abuse its discretion in denying the defendants’ motion for discovery on the claim of selective prosecution.
Before concluding this issue, we recognize that Holton‘s discovery motion sought information not only from the U.S. Attorney‘s Office for the Southern District of Florida about the prosecution of racial minorities in fake stash house cases, but also from the ATF and FBI about how defendants were selected or
targeted for investigation in such cases. Holton‘s motion, however, referred to only “selective prosecution” and never “selective enforcement.”
Similarly, on appeal, Holton used only the term “selective prosecution” in his opening and reply briefs. Holton used the term “selective enforcement” for the first time in this Court in his Rule 28(j) letter. Even assuming arguendo that Holton adequately raised the issue in the district court, he abandoned it on appeal. See United States v. Levy, 416 F.3d 1273, 1275-76 (11th Cir. 2005) (providing that issues not raised in opening brief are abandoned); United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (stating that “a party seeking to raise a claim or issue on appeal must plainly and prominently so indicate,” even if issue was preserved at trial).
IV. MULTIPLICITOUS INDICTMENT
Holton argues, for the first time on appeal, that the indictment was multiplicitous.4 Holton contends he was improperly charged with two conspiracies—one to commit Hobbs Act robbery in Count 1 and another to possess with intent to distribute cocaine in Count 2—when only a single conspiracy occurred.
The Double Jeopardy Clause prohibits multiple punishments for the same offense. United States v. Bobb, 577 F.3d 1366, 1371 (11th Cir. 2009). A multiplicitous indictment, which “charges a single offense in more than one count,” violates double jeopardy principles “because it gives the jury numerous opportunities to convict the defendant for the same offense.” United States v. Williams, 527 F.3d 1235, 1241 (11th Cir. 2008).
“Where the same conduct violates two statutory provisions, the first
Here, Holton failed to show that the indictment was multiplicitous. Neither Holton nor the government identifies anything in the conspiracy statutes or their legislative histories that speaks to Congress‘s intent to authorize separate and cumulative punishments. We therefore compare the elements of the two offenses. See Davis, 854 F.3d at 1286.
Doing so, we easily conclude the two conspiracy offenses have separate elements. Conspiracy to commit Hobbs Act robbery requires proof that: “(1) two or more persons agreed to commit a robbery encompassed within the Hobbs Act,” which prohibits robberies that affect interstate commerce; (2) “the defendant knew of the conspiratorial goal; and (3) the defendant voluntarily participated in helping to accomplish the goal.” United States v. Hano, 922 F.3d 1272, 1294 (11th Cir.), cert. denied, ___ U.S. ___, 140 S. Ct. 488 (2019). In contrast, conspiracy to possess with intent to distribute cocaine requires proof that: (1) “an illegal agreement existed to possess with the intent to distribute cocaine;” (2) the defendant knew of the agreement; and (3) the defendant knowingly and voluntarily joined the agreement. United States v. Charles, 313 F.3d 1278, 1284 (11th Cir. 2002) (emphasis omitted). Because each conspiracy requires “proof of a fact which the other does not“—namely, a distinct type of agreement—the Blockburger test is satisfied, and the indictment is not multiplicitous. See Blockburger, 284 U.S. at 304, 52 S. Ct. at 182. Holton has shown no error, much less plain error.
Holton argues that allowing multiple conspiracy prosecutions to stem from a single agreement is contrary to Braverman v. United States, 317 U.S. 49, 63 S. Ct. 99 (1942), but that case is materially different. In Braverman, the Supreme Court held that an agreement to violate multiple internal revenue laws was a single conspiracy, “however diverse its objects,” because it violated only one conspiracy statute. Braverman, 317 U.S. at 54, 63 S. Ct. at 102. Here, in contrast, defendants were charged with two conspiracies, under separate statutory provisions, which clearly “specify different ends as the proscribed object of the conspiracy.” See Albernaz v. United States, 450 U.S. 333, 339, 101 S. Ct. 1137, 1142 (1981) (concluding that conspiracy to import and conspiracy to distribute marijuana in violation of separate statutory provisions satisfied the Blockburger test).
We also reject Holton‘s argument that we should apply the “same evidence” test from United States v. Marable, 578 F.2d 151 (5th Cir. 1978). In Marable, the former Fifth Circuit concluded that a defendant‘s conviction for conspiracy to distribute cocaine violated double jeopardy because it was based on the same evidence as his prior conviction for conspiracy to distribute
To the extent Marable retains any precedential value in this Circuit, it is limited to, “at most, cases in which two counts are charged under the same conspiracy statute.” Hassoun, 476 F.3d at 1187 n.7; see also United States v. Anderson, 872 F.2d 1508, 1520 (11th Cir. 1989) (indicating that Marable does not apply “where the same agreement violates two separate statutes, each of which proscribes a discrete conspiracy“). Marable is wholly inapplicable because this case, even with its common facts, still involves two separate conspiracies, one under
V. OUTRAGEOUS CONDUCT
Cannon and Holton argue that the creation of the stash house robbery scheme constituted outrageous government conduct in violation of the Fifth Amendment‘s Due Process Clause, and that the district court erred in denying their motion to dismiss the indictment on this basis.6
Outrageous government conduct is a potential defense that “focuses on the tactics employed by law enforcement officials to obtain a conviction for conduct beyond the defendant‘s predisposition.” United States v. Sanchez, 138 F.3d 1410, 1413 (11th Cir. 1998). It is based on the Supreme Court‘s recognition of the possibility that law enforcement‘s tactics may be “so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” United States v. Russell, 411 U.S. 423, 431–32, 93 S. Ct. 1637, 1643 (1973). To establish outrageous government conduct, a defendant must show that law enforcement‘s techniques violate “fundamental fairness, shocking to the universal sense of justice, mandated by the Due Process Clause of the Fifth Amendment.” See id. at 432, 93 S. Ct. at 1643 (quotation marks omitted).
Our Circuit has caselaw analyzing outrageous government conduct claims, although this defense has never succeeded here or in the Supreme Court. See Sanchez, 138 F.3d at 1413 (stating that “[t]his Court recognizes the defense of outrageous governmental conduct,” but noting the standard has never been met in this Court or in the Supreme Court); see also United States v. Ciszkowski, 492 F.3d 1264, 1270 (11th Cir. 2007) (“[W]e do recognize the outrageous government conduct defense.“). However, the concurring opinion
We need not decide whether to adopt this defense because Cannon and Holton have not shown the government‘s conduct was outrageous in any event. Merely presenting defendants with a non-unique opportunity to commit a crime, of which they are more than willing to take advantage, does not amount to outrageous government conduct. See United States v. Savage, 701 F.2d 867, 869–70 (11th Cir. 1983). This Court has repeatedly rejected challenges to reverse sting operations, see Sanchez, 138 F.3d at 1413, and noted that they are “recognized and useful methods of law enforcement investigation,” Ciszkowski, 492 F.3d at 1271.
Taken in its entirety, the government‘s conduct was not outrageous and did not violate due process. See United States v. Haimowitz, 725 F.2d 1561, 1577 (11th Cir. 1984) (providing that we examine outrageous government conduct under the totality of the circumstances, and no single factor controls). Although the government presented Cannon and Holton with the opportunity to rob a stash house, it did not provide the entire means of executing the plan, and defendants offered much more than their “meager assistance.” See United States v. Puett, 735 F.2d 1331, 1335 (11th Cir. 1984) (stating that government conduct may be outrageous “when the government instigates the criminal activity, provides the entire means for its execution, and runs the entire operation with only meager assistance from the defendant“). The government did not initially recruit Cannon or Holton, and it was Cannon who offered to assist the CI in the future if the CI needed. Later, it was Cannon who offered the UC detective a “team” that could assist with the robbery. Notably, Cannon brought Holton into the scheme.
Cannon and Holton also declined multiple opportunities to withdraw from the robbery, were undeterred by the assured presence of armed guards at the stash house, and were willing to provide the know-how and their own guns necessary to carry out the robbery. During the recorded meetings, Holton and Cannon readily filled in the details of the plan, informing the UC detective what they would do before, during, and after the robbery. Under the totality of the circumstances, Holton and Cannon have not shown the government‘s conduct was outrageous or fundamentally unfair or “shocking to the universal sense of justice.” See Russell, 411 U.S. at 432, 93 S. Ct. at 1643 (quotation marks omitted).
To be sure, the government‘s CI suggested the robbery, and the UC detective invented the idea of a stash house with 18 kilograms of cocaine and armed guards and offered Cannon and Holton a van to use. But this level of involvement does not go beyond merely presenting Cannon and Holton with the opportunity to commit a crime, which does not amount to outrageous conduct. See Savage, 701 F.2d at 869–70.
Cannon and Holton also argue the CI‘s robbery scheme served no purpose other than to “create crime,” given that no
VI. ENTRAPMENT INSTRUCTION
Cannon and Holton challenge the district court‘s refusal to give an entrapment instruction.9
A. Entrapment Defense
Entrapment is an affirmative defense. United States v. Orisnord, 483 F.3d 1169, 1178 (11th Cir. 2007). Entrapment has two elements: “(1) government inducement of the crime and (2) the defendant‘s lack of predisposition to commit the crime before the inducement.” Id.
A defendant has the initial burden of production to show the government induced the defendant to commit the crime. Id. To establish inducement, “a defendant must prove more than that the government first solicited him or merely provided the opportunity for the crime.” United States v. West, 898 F.2d 1493, 1502 (11th Cir. 1990). Instead, the defendant must show “an element of persuasion or mild coercion,” in other words, “opportunity plus something like excessive pressure or manipulation of a non-criminal motive.” See United States v. Brown, 43 F.3d 618, 623 (11th Cir. 1995). If the defendant produces sufficient evidence to create jury issues as to inducement, the burden shifts to the government to prove beyond a reasonable doubt that the defendant was predisposed to commit the crime. Orisnord, 483 F.3d at 1178.
The district court did not err in denying the defendants’ request for an entrapment instruction. Cannon and Holton failed to present sufficient evidence to create a jury issue on inducement. As explained above, Cannon and Holton without hesitation agreed to rob the stash house and declined multiple opportunities to withdraw. Cannon and Holton planned and informed the UC detective what would happen at each stage of the robbery—from waiting in a blind spot as the UC went to the door, to tying up the guards and searching the house, to Holton dumping his gun when it was all over. On their own, they involved a third person, Nathaniel Stubbs, and never expressed any doubt. There is also no evidence that the government persuaded or coerced Cannon and Holton into committing any of the charged crimes. See Brown, 43 F.3d at 623.
The government points out that Holton and Cannon had the ability to present an effective defense. The district court gave a theory of defense instruction, which emphasized the mental state required for a conviction. The court told the jury to find Cannon and Holton guilty only if it concluded that they had the requisite intent or willfulness to commit the crimes charged and the government merely presented them “with the opportunity to do so.” Even without an entrapment instruction, the jury was able to consider whether Cannon and Holton acted with the requisite willful intent to commit a crime.
B. Sentencing Entrapment
For the first time on appeal, Cannon raises a sentencing entrapment claim.10 He argues the government entrapped him into agreeing to rob a greater quantity of drugs than he was predisposed to purchase and that the district court should have given an instruction on sentencing entrapment.
“Sentencing entrapment is the claim that a defendant, although predisposed to commit a minor or lesser offense, is entrapped into committing a greater offense subject to greater punishment.” Sanchez, 138 F.3d at 1414 (quotation marks omitted). This Court previously has rejected the viability of sentencing entrapment as a defense. Ciszkowski, 492 F.3d at 1270. Therefore, the district court did not err, much less plainly err, in not giving a sentencing entrapment instruction.
Cannon argues that in light of the Supreme Court‘s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), our precedent rejecting the sentencing entrapment defense should be overruled. We disagree. Apprendi has no application to a sentencing entrapment defense.
Even assuming the defense was somehow available, it would be examined “according to those rules applicable to a traditional entrapment defense,” which requires the defendant to carry the initial burden of establishing inducement. United States v. Ryan, 289 F.3d 1339, 1343 (11th Cir. 2002). As set forth above, Cannon failed to present sufficient evidence to create a jury issue as to inducement.
VII. JUROR DISMISSAL
Cannon argues that the district court erred in dismissing Tameka Spicer from the jury because: (1) Spicer said she could be fair and impartial; and (2) no adequate record was made concerning
A district court has the authority to replace with alternates “any jurors who are unable to perform or who are disqualified from performing their duties.”
“We will not disturb a district court‘s decision to remove a juror before deliberations absent a showing of bias or prejudice, which includes removal without factual support, or for a legally irrelevant reason.” United States v. Godwin, 765 F.3d 1306, 1316 (11th Cir. 2014) (quotation marks omitted). The district court need provide only “a reasonable cause” for its decision to replace a juror. Crabtree, 878 F.3d at 1288 (quoting Fajardo, 787 F.2d at 1526). When a juror demonstrates actual bias, or if bias is implied due to a special relationship with a party, removal is required. United States v. Rhodes, 177 F.3d 963, 965 (11th Cir. 1999).
The district court did not abuse its discretion in dismissing juror Spicer who knew Holton‘s wife and styled her hair on a regular basis. It was well within the district court‘s discretion to conclude that Spicer‘s relationship to Holton‘s wife was financial in nature and “too close,” and that this created a greater likelihood of her being “influenced by her relationship to . . . Holton‘s wife.” That Spicer told the district court the relationship would not impact her ability to perform her duties does not compel a different conclusion. Despite her statement of no actual bias, the court was still required to determine if there would be implied bias due to the relationship. See Rhodes, 177 F.3d at 965.
Because the court‘s decision to dismiss Spicer was supported by a factual basis for implied bias and a legally relevant reason, we will not disturb it. See Godwin, 765 F.3d at 1316. Even if the court had somehow violated Rule 24(c), which it did not, Cannon makes no attempt to show that Spicer‘s replacement prior to deliberations resulted in prejudice requiring reversal. See United States v. Puche, 350 F.3d 1137, 1152–53 (11th Cir. 2003) (stating that reversal is required only when there is a “reasonable possibility” that the
We also reject Cannon‘s argument that the district court failed to develop the record regarding Spicer‘s financial ties to Holton‘s wife. After putting Spicer under oath and establishing the existence of her relationship to Holton‘s wife, the district court said it was willing to ask additional questions of Spicer and invited both sides to present authorities in support of their positions. Neither Cannon nor Holton requested further questioning or offered caselaw indicating that Spicer‘s dismissal would be improper. To the contrary, Cannon indicated it was “in all likelihood” within the court‘s discretion to dismiss Spicer. Spicer‘s dismissal was not an abuse of discretion.
VIII. COURT REPORTER ACT
Cannon argues that his right to have all proceedings in open court transcribed was violated. Cannon requests “a new trial or reconstruction of the Records” because he
The Court Reporter Act requires “all proceedings in criminal cases had in open court” to be “recorded verbatim by shorthand, mechanical means, electronic sound recording, or any other method, subject to regulations promulgated by the Judicial Conference and subject to the discretion and approval of the judge.”
At trial, both the recordings and the corresponding written transcripts of them were admitted into evidence and are part of the record on appeal. The record is complete. The transcripts were admitted as exhibits of the actual conversations on the recordings and no one, then or now, contested their accuracy. Under these circumstances, nothing in the Court Reporter Act requires that the audio or video recordings, which “are not testimony but are themselves admitted into evidence as exhibits,” also be transcribed by the court reporter. See United States v. Morales-Madera, 352 F.3d 1, 7 (1st Cir. 2003) (stating, in case involving wiretapped recordings, that “[t]he Court Reporter Act is not usually understood to require the reporter to record separately the contents of exhibits admitted in evidence“); see also United States v. Craig, 573 F.2d 455, 480 (7th Cir. 1977) (concluding there was “substantial compliance” with the Court Reporter Act—even though court reporter did not transcribe tape recordings that were played to the jury—because the recordings were part of the record on appeal, the court had before it “the most accurate record of what was heard by the jury,” and appellate review was in no way impeded).
IX. FIREARM CONVICTIONS
Cannon and Holton challenge their § 924(c) firearm convictions.
A. Background
Section 924(c) prohibits a person from using or carrying a firearm “during and in relation to any crime of violence or drug trafficking crime” or possessing a firearm “in furtherance of any such crime.”
Before their 2016 trial, the defendants claimed that Hobbs Act robbery conspiracy was not a crime of violence based on Johnson v. United States, 576 U.S. 591, 135 S. Ct. 2551 (2015), and moved the district court to dismiss that predicate in Count 3. The district court denied the defendants’ motion and submitted Count 3 to the jury with both predicates.
In 2019, while this appeal was pending, the Supreme Court in United States v. Davis invalidated part of
B. Two Predicates in Count 3
On appeal, the defendants contend that because one of the two predicate crimes in Count 3 is an invalid predicate, their
First, we agree that it was error for the district court to deny the defendants’ motion to dismiss the predicate of Hobbs Act robbery conspiracy and to submit that crime as a valid predicate in Count 3 for the jury‘s consideration. Although the trial occurred in 2016, the defendants timely raised the issue in the district court and in this direct appeal, and Davis and Brown apply here. See United States v. Cubelo, 726 F.3d 1260, 1266 (11th Cir. 2013) (explaining that the Supreme Court‘s new rule applies retroactively on direct appeal if a defendant preserved his objection throughout the trial and appeal process). Further, it is error to instruct a jury that it can convict on alternative theories of guilt, one of which is invalid. Hedgpeth v. Pulido, 555 U.S. 57, 58, 129 S. Ct. 530, 530 (2008); see also Yates v. United States, 354 U.S. 298, 312, 77 S. Ct. 1064, 1073 (1957), overruled on other grounds by Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141 (1978); Stromberg v. California, 283 U.S. 359, 367-68, 51 S. Ct. 532, 535 (1931).
Nonetheless, the government contends that this error was harmless.12 The error here is not structural and is subject to harmless-error review. See Hedgpeth, 555 U.S. at 61-62, 129 S. Ct. at 532 (holding instructional errors arising in the context of multiple theories of guilt, one of which is invalid, are not structural errors but are errors subject to harmless-error review);13 see also Skilling v. United States, 561 U.S. 358, 414 & n.46, 130 S. Ct. 2896, 2934 & n.46 (2010). The government, however, has the burden as to harmless error. See Neder v. United States, 527 U.S. 1, 15, 119 S. Ct. 1827, 1837 (1999).
The harmless-error test “is whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.‘” Id. (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828 (1967)). Stated another way: “Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?” Id. at 18, 119 S. Ct. at
C. Harmless Error
Here, the government has met its burden to show that this error as to Count 3 was harmless. If Hobbs Act robbery conspiracy were the only predicate for the defendants’
That alone does not end our harmless-error inquiry. The defendants argue that the jury may have unanimously found the guns connected to the invalid Hobbs Act robbery conspiracy but not to the still-valid cocaine conspiracy. Because there was a general verdict, the defendants argue it is impossible to tell if the jury unanimously agreed the guns were connected to the cocaine conspiracy. We disagree because the trial record makes clear that the two predicate conspiracy crimes were so inextricably intertwined that no rational juror could have found that Cannon and Holton carried a firearm in relation to one predicate but not the other.
First, the indictment itself indicates the two conspiracies were intertwined and coextensive. Count 1 charged that, between June 22, 2015, and November 13, 2015, Cannon, Holton, and Stubbs conspired to rob narcotics traffickers of their cocaine. Correspondingly, Count 2 charged that, during that same time period, the same three defendants also conspired to possess the same controlled substance, cocaine, with the intent to distribute it.
Second, the jury found Cannon and Holton guilty of both the underlying Hobbs Act robbery conspiracy charged in Count 1 and the underlying cocaine conspiracy charged in Count 2. The jury‘s guilty verdicts on both Counts 1 and 2 conclusively establish that the jury unanimously found beyond a reasonable doubt that the defendants were conspiring to rob the stash house of cocaine so they could then possess and distribute the cocaine themselves.
Third, while the two conspiracies had different elements, the trial evidence established the same facts and time period underlying each crime. The cocaine the defendants were planning to rob from the narcotics traffickers was the same cocaine they were planning to possess with the intent to distribute. Undisputedly, the goal of the robbery scheme was to steal cocaine from a stash house so they could then distribute it themselves. And, on the day of the planned stash house robbery, the defendants brought firearms to the prearranged meeting place because they intended to use those firearms to take the cocaine from the armed guards at the stash house. In other words, the defendants brought the firearms simultaneously to rob the narcotics traffickers of cocaine and to take possession of the cocaine. No reasonable juror could have found that Cannon and Holton carried their firearms in relation to the Hobbs Act robbery conspiracy but not the cocaine conspiracy. We thus can confidently say, on the whole record, that the error was harmless beyond a reasonable doubt. See Neder, 527 U.S. at 15, 18, 119 S. Ct. at 1837, 1838; Van Arsdall, 475 U.S. at 681, 106 S. Ct. at 1436.
Before concluding, we review three other
In In re Navarro, this Court concluded that the predicate crimes “seem[ed] inextricably intertwined, given the planned robbery underlying the charge for conspiracy to commit Hobbs Act robbery was the robbery of a [fake] drug stash house.” 931 F.3d at 1302 n.2. The Court held that the drug-trafficking predicates “independently supported” the defendant‘s
In contrast, when there is only a limited record before the Court, it may be unclear which crime served as the predicate. For example, In re Cannon involved ten
Similarly, in In re Gomez, we discussed the dangers of a general jury verdict and the limited record before us and determined the defendant had made a “prima facie” showing to file a successive
Here, we have a complete factual record, and the trial testimony and
In sum, the trial record makes clear the Hobbs Act robbery conspiracy predicate was inextricably intertwined with the cocaine conspiracy predicate, both of which were proven to the jury beyond a reasonable doubt. Therefore, despite the general verdict as to Count 3, the record, as a whole, shows that the jury unanimously found that Cannon and Holton used and carried a firearm during and in relation to a conspiracy to possess cocaine with intent to distribute, a drug trafficking crime unaffected by Davis. Thus, the government has carried its burden of showing harmless error. Accordingly, Cannon and Holton‘s challenge to their
X. CONCLUSION
For the reasons above, we affirm Cannon‘s and Holton‘s convictions and sentences.
Notes
A count in an indictment is duplicitous if it charges two or more separate and distinct offenses. United States v. Schlei, 122 F.3d 944, 977 (11th Cir. 1997). Holton does not explain why