UNITED STATES OF AMERICA v. OMAR KAREEM BANKS
No. 20-4172, No. 20-4173
United States Court of Appeals for the Fourth Circuit
March 18, 2022
PUBLISHED. Argued: December 9, 2021. Before GREGORY, Chief Judge, NIEMEYER and QUATTLEBAUM, Circuit Judges.
ARGUED: Paul Graham Beers, GLENN, FELDMAN, DARBY & GOODLATTE, Roanoke, Virginia, for Appellant. Jonathan Patrick Jones, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee. ON BRIEF: Daniel P. Bubar, Acting United States Attorney, Anthony P. Giorno, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.
Omar Kareem Banks, who was indicted for possession with intent to distribute 50 or more grams of methamphetamine, argues that the district court‘s jury instructions at his trial constructively amended his indictment by permitting the jury to convict on a basis not included in the indictment. Although he did not object at trial, after being convicted of possession with the intent to distribute, Banks now claims the district court‘s instructions violated the Grand Jury Clause of the Fifth Amendment. We previously held in United States v. Floresca, 38 F.3d 706 (4th Cir. 1994), that constructive amendments must always be reversed without reference to the four factors of plain error review. But Floresca‘s reasoning and holding are inconsistent with subsequent Supreme Court opinions and thus no longer tenable. Instead, that Supreme Court authority requires plain error review. And under that review, Banks fails to establish that his conviction for possession with intent to distribute would seriously affect the fairness, integrity and public reputation of judicial proceedings.
Banks also raises several other challenges to his conviction. He argues that the district court‘s jury instructions made his indictment duplicitous because they created the possibility that the jury could have convicted him for either possession with intent to distribute or distribution. He argues a separate count of his indictment, violation of
Accordingly, we affirm Banks’ conviction.
I.
On the morning of February 7, 2019, Omar Banks and David Ringley met with a group of methamphetamine users at a Super 8 motel in Coeburn, Virginia. The group consisted of Brandy Mullins, Steven “Spider” Stevens, Carmen Long and Christy Salyers. They had rented two rooms, rooms 231 and 232, which were directly across from one another on the second floor. The group had been smoking methamphetamine all night. But by the time Banks and Ringley arrived, they had run out.
Banks and Ringley met Mullins, Long and Salyers in the motel‘s parking lot. Banks removed a red duffel bag from the car and carried it into room 232. After that, the group began using methamphetamine again. About an hour and a half later, Ringley overdosed.
Spider called 911, claiming Ringley had suffered an allergic reaction. Spider then instructed the group to move everything drug-related into the other room. In turn, everyone left room 232—where Ringley had overdosed—and headed across the hall into room 231, bringing their stuff with them.
A few minutes later, Banks and Long, who both had outstanding arrest warrants, left the motel and Banks stashed the red duffel bag in his car. Long and Banks then went back into the motel allegedly to get Long, Salyers and Mullins’ laundry out of the motel‘s
After they finished their breakfast, Long and Banks returned to the laundry room with Banks still carrying the white bag. But by this time, the rescue squad and law enforcement had arrived in response to the 911 call. At first, they went to room 232, where Ringley had overdosed. While the rescue squad tended to Ringley, officers spoke with those who stayed behind with him. The police officers found an empty holster and learned that Banks and Long had been present. They also searched room 231. There, the officers found drug paraphernalia and a “rock of some kind,” which they believed to be narcotics. J.A. 650-51.
The officers began to look for Banks and Long. They found them outside the motel‘s laundry room. As Long left the laundry room, police officers stopped her. After that, Banks left the white bag in the laundry room and tried to walk away. But before he could leave, a police officer stopped him as well.
The officers recovered the white bag from the laundry room. It contained 82 grams of methamphetamine, a gun and $836 in cash.
The officers also recovered Banks’ red bag from his car. It contained 70 grams of methamphetamine, scales, a cellphone and another gun. An agent who examined the phone learned that the device user was named “Omar.” He also discovered a Facebook account in the name of “Omar Banks” and email addresses bearing the names “omarbanks420” and “banksomar096” on the phone. A firearms expert identified the gun as a .380 caliber Hi-Point CF380 pistol with an orange snake grip.
A federal grand jury indicted Banks for several offenses, two of which relate to the events of February 7, 2019, and are most relevant to this appeal.1 Count 10 of the indictment charged Banks with possession with intent to distribute 50 or more grams of methamphetamine.2 Count 11 of the indictment charged Banks with using and carrying a firearm during and in relation to, and possessing a firearm in furtherance of, a drug trafficking crime.3
After closing arguments, the district court instructed the jury on the charges in the indictment. On the possession with intent to distribute charge, the court instructed that the government must prove:
First. That Mr. Banks possessed with the intent to distribute or distributed the controlled substance; and
Second. That Mr. Banks knew that the substance was a controlled substance; and
Third. That Mr. Banks did so knowingly.
J.A. 928-29 (emphasis added). The “or distributed” language is the subject of Banks’ constructive amendment argument.
The verdict form, however, did not contain that language. It asked whether Banks “[k]nowingly and intentionally possessed with intent to distribute [50 grams or more of] methamphetamine, on or about February 7, 2019.” J.A. 989B. The jury found that he did and that Banks also “[k]nowingly used and carried a firearm during and in relation to, or possessed in furtherance of, a drug trafficking crime,” on the same date. J.A. 989B. In fact, the jury found Banks guilty on every charged count.
The district court sentenced Banks to the statutory minimum of 240 months in prison, a period below the imprisonment range prescribed by the advisory Sentencing Guidelines. Banks timely appealed and we have jurisdiction pursuant to
Banks challenges the district court‘s inclusion of “or distributed” in the jury instructions for the possession with intent to distribute charge. He argues that these two words constructively amended that count, and by extension the carrying and using a firearm in relation to drug trafficking count, by permitting the jury to convict on a basis—distribution—that was not in the indictment.
A.
The Fifth Amendment guarantees that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.”
Importantly, Banks did not object to the instructions before the district court. Generally, we review an unpreserved argument for plain error. United States v. Simmons, 11 F.4th 239, 267 (4th Cir. 2021); see also
But in our en banc decision in United States v. Floresca, 38 F.3d 706 (4th Cir. 1994), we concluded that “constructive amendments of a federal indictment are error per se.” Id. at 714. In reaching this decision, we relied on language from the Supreme Court‘s decision in Stirone v. United States, 361 U.S. 212 (1960). We interpreted Stirone‘s statement that “a court cannot permit a defendant to be tried on charges that are not made in the indictment against him,” id. at 217, “to mean that a constructive amendment of the indictment constitutes error per se.” Floresca, 38 F.3d at 711. We also explained our belief that the Supreme Court would consider constructive amendments to be “structural defects.” Id. at 712 (citing Sullivan v. Louisiana, 508 U.S. 275, 281 (1993)).
Under the rule announced in Floresca, if the district court constructively amended the indictment by including the “or distributed” language in its jury instructions, we would be compelled to vacate Banks’ conviction. The government argues, however, that we should not follow the per se rule in Floresca based on more recent Supreme Court precedent. A panel of this Court cannot overrule a precedential decision, let alone an en banc ruling. McMellon v. United States, 387 F.3d 329, 333 (4th Cir. 2004). But we need not follow precedent by a panel or by the court sitting en banc “‘if the decision rests on authority that subsequently proves untenable’ considering Supreme Court decisions.” United States v. Williams, 808 F.3d 253, 261 (4th Cir. 2015) (quoting U.S. Dep‘t of Health & Hum. Servs. v. Fed. Lab. Relations Auth., 983 F.2d 578, 581-82 (4th Cir. 1992)). Authority is untenable if its reasoning or holding is inconsistent with a Supreme Court decision. U.S. Dep‘t of Health & Hum. Servs., 983 F.2d at 582; Etheridge v. Norfolk & W. Ry. Co., 9 F.3d 1087, 1090-91 (4th Cir. 1993) (concluding that the Court was no longer bound by a decision after “a superseding contrary decision of the Supreme Court . . . specifically rejected the reasoning on which [that decision] was based and that, accordingly, [that decision] is no longer a correct statement of the law“). Thus, we must
C.
To do so, we examine a series of Supreme Court cases that began just three years after Floresca. In Johnson v. United States, 520 U.S. 461, 463 (1997), the Supreme Court applied plain error review when the materiality element of a perjury conviction was decided by the district court, not the jury. The Supreme Court rejected the claim that plain error did not apply because of the seriousness of the error. In applying plain error, it found that the error was plain and assumed that it affected substantial rights. Id. at 468-69. But it declined to reverse the conviction based on the error because the fourth prong of Olano‘s plain error review could not be satisfied. As the evidence related to the omitted materiality element was “overwhelming” and “essentially uncontroverted,” the Court held that declining to reverse would not “seriously affect[] the fairness, integrity or public reputation of judicial proceedings.” Id. at 470 (internal quotation marks omitted). In fact, under the circumstances there, it felt reversing would have that effect. The Court reasoned, “[r]eversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it.” Id. (internal quotation marks omitted).
Then, five years later in United States v. Cotton, 535 U.S. 625 (2002), the Supreme Court addressed whether an “Apprendi error“—the omission from a federal indictment of a fact that enhances the statutory maximum sentence later added by the district court for
The Supreme Court reversed. It held that violations of the Grand Jury Clause do not automatically require reversal. Cotton, 535 U.S. at 632-33. Instead, it applied Olano‘s standard for plain error review to the alleged indictment defect. Id. at 631-32. The Court found plain error but did not reach the third step of the inquiry, which would have addressed
The Supreme Court also specifically addressed Stirone, which we relied on in our Floresca and Cotton decisions, in holding that a defendant cannot be tried on charges not set forth in the indictment. See Cotton, 261 F.3d at 405; Floresca, 38 F.3d at 714-15. The Court distinguished Stirone because there, “proper objection had been made in the District Court to the sufficiency of the indictment.” Cotton, 535 U.S. at 631. But where defendants failed to object to alleged errors at trial, as in Cotton and here, plain error review was required. Id.
Banks argues that Floresca is still good law. He insists that it could not have been rendered untenable by Cotton or Johnson because neither of those cases involved a constructive amendment. He also points out that the Fourth Circuit has continued to cite Floresca, even after Johnson and Cotton, for the rule that constructive amendments are per se reversible. See, e.g., Simmons, 11 F.4th at 269-70; United States v. Miltier, 882 F.3d 81, 93 (4th Cir. 2018); Whitfield, 695 F.3d at 307; United States v. Rendelman, 641 F.3d 36, 49 (4th Cir. 2011) (citing Randall, 171 F.3d at 203, which cited Floresca); United States v. Robinson, 627 F.3d 941, 958 (4th Cir. 2010); United States v. Foster, 507 F.3d 233, 242 (4th Cir. 2007). Thus, Banks maintains that Floresca requires us to vacate his conviction.
But these arguments are not persuasive. First, Banks reads Cotton far too narrowly. Cotton broadly rejected “the view that indictment omissions deprive a court of
Banks likewise identifies no meaningful reason why a constructive amendment error should be reviewed differently than the Apprendi error addressed by Cotton. For example, he cannot articulate any greater harm or risk in a constructive amendment error, as compared to an Apprendi error, that would warrant a per se reversal. He simply insists that a constructive amendment error is distinct. In that narrow sense, he is right. But distinctions, of course, do not require different treatment. Our precedent compels a more substantive analysis. We must not only consider if Floresca was overruled by Cotton; we must also consider whether the reasoning of Cotton renders Floresca untenable. See Williams, 808 F.3d at 261. Once again, to answer this question, we consider whether Floresca‘s reasoning or holding is inconsistent with Cotton. Both are.
Floresca relied on Stirone, but Cotton clarified that Stirone involved preserved challenges to “the sufficiency of the indictment,” Cotton, 535 U.S. at 631, not unpreserved indictment errors like we have here. Cotton also held indictment omissions—a term that includes constructive amendments—were subject to plain error review. Cotton, 535 U.S. at 631. For both reasons, Floresca‘s reasoning and holding are inconsistent with Cotton.
And likewise, Banks overstates our Court‘s post-Johnson and post-Cotton decisions addressing Floresca. Generally, those decisions found no constructive amendment and merely restated the rule from Floresca. And none grappled with how Floresca survives Cotton or Johnson. See, e.g., Miltier, 882 F.3d at 93 (restating the rule in Floresca but finding there was not a constructive amendment and not citing Cotton or Johnson); Rendelman, 641 F.3d at 43, 49 (restating the rule in Floresca by citing Randall, 171 F.3d at 203, but finding there was not a constructive amendment and not citing Cotton or Johnson); Robinson, 627 F.3d at 958 (finding no constructive amendment and only citing Johnson for a different plain error argument); Foster, 507 F.3d at 242 (restating the rule in Floresca but finding there was not a constructive amendment and only citing Cotton for a different plain error argument). Any discussion in those cases of the per se reversal rule announced in Floresca, therefore, constitutes dicta.
The closest reaffirmation comes from Whitfield. In Whitfield, we concluded that there was a constructive amendment to the indictment and that the error was “fatal and reversible per se.” Whitfield, 695 F.3d at 308 (citations omitted). But that case is distinguishable because there, the defendant objected to the constructive amendment at trial. Id. at 299. As a result, the alleged constructive amendment would not have been examined under plain error review. Id. at 307. We thus did not face the potential applicability of Johnson or Cotton.
We recently recognized, in Simmons, the possibility that Cotton and Johnson overruled Floresca. But we did not resolve the issue because there the government had not addressed it. 11 F.4th at 269-70. Despite that, we noted:
There is a legitimate question as to whether Floresca‘s per se reversal rule in plain error constructive amendment cases remains doctrinally sound in the wake of the Supreme Court‘s post-Olano plain error jurisprudence, most prominently the decisions in [Johnson, Cotton, and United States v. Marcus,
560 U.S. 258 (2010)5]. After all, while some courts treat the issue of prejudice for purposes of Olano‘s third prong differently, we are the only circuit that requires a panel to exercise its discretion to notice and correct constructive amendments on plain error review.
. . . The Government has not made that argument—that Floresca is no longer good law in light of the Supreme Court‘s opinions in Johnson, Cotton, and Marcus—before us. So we decline to take a position on whether that intervening precedent compels us to abandon parts of Floresca‘s holding and apply the decision as it stands.
Today, that issue is squarely before us. And because of Cotton and Johnson, we conclude our Floresca decision is no longer tenable. Constructive amendments, like other indictment errors, do not require per se reversal. If our prior decisions require a different result, those holdings are undermined by Johnson and Cotton. Accordingly, we are not bound to follow them. And although some of these cases were decided after Cotton, we find their reasoning inconsistent with Supreme Court authority and thus decline to follow it. We thus join all of our sister circuits that have addressed the issue to hold that, in the Fourth Circuit, alleged constructive amendments not objected to below are subject to plain error review.
Turning now to our plain error review, the government disputes the first prong of our inquiry—whether the district court constructively amended the indictment. But it concedes that if the district court did so, that the error was plain, satisfying the second prong of plain error review. And it also does not dispute that if the district court erred, the error affected Banks’ substantial rights, satisfying the third prong of our inquiry.6 Thus, the first contested issue before us is whether the district court constructively amended Banks’ indictment. The parties vigorously dispute this issue. In any event, we need not resolve that dispute because, even if it were, under plain error review, it does not seriously affect the fairness, integrity or public reputation of the judicial proceedings.
Cotton is helpful in our analysis. There, the Supreme Court determined “[t]he evidence that the conspiracy involved at least 50 grams of cocaine base [which was not in
Much of the evidence implicating respondents in the drug conspiracy revealed the conspiracy‘s involvement with far more than 50 grams of cocaine base. Baltimore police officers made numerous state arrests and seizures between February 1996 and April 1997 that resulted in the seizure of 795 ziplock bags and clear bags containing approximately 380 grams of cocaine base. A federal search of [a respondent‘s] residence resulted in the seizure of 51.3 grams of cocaine base. A cooperating co-conspirator testified at trial that he witnessed [a different respondent] cook one-quarter of a kilogram of cocaine powder into cocaine base. Another cooperating co-conspirator testified at trial that she was present in a hotel room where the drug operation bagged one kilogram of cocaine base into ziplock bags. Surely the grand jury, having found that the conspiracy existed, would have also found that the conspiracy involved at least 50 grams of cocaine base.
Id. (internal citations to the record omitted). The Supreme Court ultimately concluded that “[t]he real threat then to the ‘fairness, integrity, and public reputation of judicial proceedings’ would be if respondents, despite the overwhelming and uncontroverted evidence . . ., were to receive a sentence prescribed for those committing less substantial drug offenses because of an error that was never objected to at trial.” Id. at 634.
Here too, there was overwhelming and generally uncontroverted evidence that Banks possessed with the intent to distribute over 50 grams of methamphetamine. Banks took a red duffel bag out of a car, carrying it with him throughout the motel and later carrying it back to the car. And that red duffel contained more than 50 grams of methamphetamine itself. Banks also carried a white tote bag, which officers testified also contained more than 50 grams of methamphetamine, in the motel. Moreover, Mullins, Spider, Long and Salyers smoked all their own supply of methamphetamine. After that, Banks and Ringley arrived at the Super 8, brought a bag into the motel rooms—a bag which
Based on this record, a jury could not have found Banks guilty of only distribution and not possession with intent to distribute. The overwhelming and uncontroverted evidence supports Banks’ conviction for possession with intent to distribute. Vacating Banks’ conviction and remanding for a new trial would not advance the fairness, integrity and public reputation of the courts. In fact, just like in Johnson and Cotton, the “real threat then to the ‘fairness, integrity, and public reputation of judicial proceedings’ would be if [Banks] despite the overwhelming and uncontroverted evidence” were to receive a new trial for an offense for which he has already been convicted. See Johnson, 520 U.S. at 470; Cotton, 535 U.S. at 625. Plain error review does not require reversal based on these unobjected-to errors.
IV.
Banks raises three other challenges on appeal. These, however, can be disposed of quickly.
Banks alternatively argues that count 10, and by association count 11, as instructed to the jury was duplicitous. He insists that the district court‘s inclusion of “or distributed” in its instruction created the possibility that the jury could have convicted him for either possession with intent to distribute or distribution. Banks did not raise a duplicity objection before the district court. Therefore, we review his argument for plain error. United States v. Robinson, 855 F.3d 265, 270 (4th Cir. 2017).
Ultimately, Banks does not provide any argument suggesting how he prevails at the fourth prong of plain error review. Thus, no reversal is required for duplicity. Cf. Greer, 141 S. Ct. at 2097 (noting that defendant bears the burden of establishing entitlement to relief for plain error by establishing each of the four requirements).
B.
Banks asserts another duplicity argument. He contends that count 11 is duplicitous as charged in the indictment and as instructed because
Banks and the government agree that this argument should be considered under plain error review because Banks did not argue below that the indictment and instructions
Second, Banks cannot show an impact upon his substantial rights. There is no evidence of “use and carry” of a firearm in the record separate from the evidence of “possession” of the firearm. Thus, to convict Banks of count 11 under either the “use and carry” or “possession” prongs, the jury would have to credit the same evidence. This negates any risk of a non-unanimous verdict and eliminates the prejudice from the third Olano prong. Robinson, 627 F.3d at 957-58 (rejecting a
C.
Banks also argues that the district court erred in admitting into evidence, over his objection, the certificate of authenticity of the Facebook records and the messages associated with the Facebook account bearing the “Banks” name. He contends the government provided no foundation showing that the “Omar Banks” referred to in the records was him or that the messages were written by him. “We review evidentiary rulings for an abuse of discretion.” United States v. Sterling, 860 F.3d 233, 246 (4th Cir. 2017).
“A proponent of evidence must ‘produce evidence sufficient to support a finding that the item is what the proponent claims it is.‘” United States v. Recio, 884 F.3d 230, 236 (4th Cir. 2018) (quoting
V.
For the reasons given above, the judgment below is
AFFIRMED.
Notes
On or about February 7, 2019, in the Western District of Virginia and elsewhere, OMAR KAREEM BANKS knowingly and intentionally possessed with the intent to distribute 50 grams or more of a mixture or substance containing methamphetamine, a Schedule II controlled substance. . . . All in violation of
J.A. 106.
BANKS knowingly used and carried during and in relation to, and possessed in furtherance of, a drug trafficking crime for which he may be prosecuted in a court of the United States (possession with the intent to distribute a mixture or substance containing methamphetamine, as set forth in Count Ten), a firearm. . . . All in violation of
J.A. 106-07.