United States v. Shane Hare

whereby they present with Bowden FLOYD, Before SHEDD and Circuit opportunity to rob a fictitious cocaine Judges, BIGGS, and LORETTA C. United n ' and, stash according if all house went Judge States District for the Middle ultimately plan, any him. ac- arrest Carolina, District of North sitting by complices for conspiring drugs to traffic designation.

and related crimes.1 by published 19, 2013, opinion. Judge- Affirmed April On PGPD undercover opinion, Judge FLOYD wrote the' in which detective met William Weathers with Bow- ' banc); investigations, Cir.2015)(en Black, 1. ATF has conducted such States United investigations, (9th known as “home Cir.2013); invasion” 733 F.3d 294 See, country, years. .e.g., across the in recent Sanchez, Davis, United States v. 793 F.3d 712 he Rogers stated that want- Agent house. opportuni potential of a him den inform him- kilograms of cocaine keep Detective ed house. drug stash ty rob could divide whatever crew that he knew someone self but the' explained Weathers seize, emphasizing look who was were able- else involved 10 to help him rob contained the stash house people ing group “bricks” also cautioned kilograms of cocaine. He containing several response, guards “chop- Bow- had a that the stash house J.A. cocaine. (i.e., weapon). I do!”' several “that’s what automatic per” stated an den Edwards) usually (led worked that he how to discussed times and indicated crew people. J.A. robbery. They or three other decided two’ execute Williams, discussed two, Weathers Bowden and Detective Hare and the fastest left, Bowden shouting further before and se- “police!” first enter while to let him' know telling Weathers chopper. Detective and Edwards the Bowden cure n : bring. many people using secure, guards how the follow and would necessary, Ap- If tape. zip ties and duct 2013, 3, Weathers May ‘Detective On shoot the would pellants and Bowden introduced Bowden and' again met with the but would guards waist below Christopher Agent Special him to Rogers asked if Agent kill. shoot When Agent acting undercover.2 Rogers, also replied weapons, Edwards had Appellants drug was a he Rogers Bowden told (cid:127) gun,” their and “[everybody got own. was job cartel whose for a Mexican courier confirmed, prob- ain’t “[t]hat Williams kilograms cocaine each to transport 5 proposed also 780. Edwards lem.” J.A. cartel’s stash house from the month they to enter “Plan B” were unable case Richmond, Agent Virginia. Baltimore B, Bowden the stash Plan .Under house. to rob that he explained wanted Rogers- to rob pretend Appellants and would unhappy he was because the stash house shipment, kilogram Rogers his 5 Agent pay experienced needed an his and with split the lesser group and would house, the contained which because the crew he Rogers amount. stated that cocaine, Agent kilograms of to 15 an additional . geta- car their could rental procure a men. by heavily armed three guarded was plan to. the way. Appellants agreed and the.robbery, agreed to commit Bowden Agent Rogers phone their numbers. gave four of three stating a crew or that he had living.” for a what do people and “that’s Bowden, Rogers Agent and Appellants, if Rogers Bowden Agent asked 14, J.A. 43. Rogers -May Agent on 2013. next met weapons and1 confirmed had Bowden group that his next informed the did, we do!” again stating, “that’s he all days p.m. be at 1:00 two pick-up would later, 16, rob- the May on when which Edwards, . confirmed bery occur. would 2013, Agent Rogers met May On group “ready.” the was J.A. crew, consisting of his Bowden and they be Agent Rogers should advised that Williams, Hare, Bow- and Edwards. lants a,m. day on by 10:00 assembled Appellants, none-of himself recruited den staying in robbery, proposed Bowden At to ATF. known previously whom were they would night before so a hotel the. Agent Rogers repeated his meeting, (again crew led already be The together. drug courier story being disgruntled Edwards) (i.e., Plan plan reviewed the cartel’s stash to rob his looking a crew tran- Appellants were recorded meeting subsequent three and the 2. This n Bowden, scribed. Agent meetings Rogers, between A), ammunition, including Agent Rogers once en- violation of 18 U.S.C. § to pick up ship- 922(g)(1). tered stash house his ment, Appellants Bowden and would burst (cid:127) trial, Appellants Before moved dis- Agent Rogers “hit the floor” covery into whether race played a role in getting to avoid shot. J.A. Bowden ATF’s decision to target Bowden and Ap- gloves would also wear and pellants for a operation. get leaving fingerprints haircuts to avoid The district court motion, denied the Agent Rogers When asked DNA.. though government it ordered the to pro- about weapons, Williams confirmed duce to page one out of ATF’s bring “hand tools” and training materials for conducting such op- potentially an. pump shotgun. automatic erations. moved dis- group again Ap- discussed Plan B if miss the ground indictment that the pellants and Bowden not enter could government engaged had in outrageous stash house to execute Plan A. conduct that violated their process due rights. The district court May this mo-

On denied Bowden and Appel- tion as well. Agent lants Rogers storage met facili- at a ty, predetermined was the staging which trial, a seven-day After jury .the re- location for robbery. The crew con- special turned finding Appellants verdict they ready that were proceed firmed to on all guilty counts. district court and reviewed A both Plan and Plan B. to sentenced Hare months of imprison- Williams they confirmed that would be ment, months, to Williams and Ed- Agent Rogers gave armed. then the take- to Appellants wards 240 months. filed this signal down ATF 'agents and surrounded appeal challenging, among other things, group, arresting Appel- Bowden and the district court’s denial of their motion agents ATF lants. recovered a Kimber dismiss, discovery for and to motion brand firearm'from glove a inside locked well as their convictions for the firearm vehicle, in box Bowden’s a Beretta brand in offenses Counts 3 and that firearm Hare had thrown under thé vehicle, mask, a black pair gloves. and a of H. Appellants charged were each with the A. (1) four counts: conspiracy

same to inter- (i.e., fere with by Appellants commerce first that contend the district . Act” robbery), of “Hobbs in violation 18 court in denying their motion erred for 1951(a); (2) § U.S.C. possess to conspiracy discovery targeted into whether ATF Bow- distribute, cocaine, intent in den and Appellants sting for 846; (3) § violation of 21 conspiracy black, i.e., they U.S.C. are operation because possess a firearm in furtherance of a whether in engaged ATF selective enforce- drug trafficking motion, crime or a crime of In vio- ment. of their support lence, 924(o); § in of violation presented U.S.C. lants indicating evidence (4) possession , of a firearm in further- there had been a total of 5 stash house drug ance of a crime or prosecuted a crime in- cases District of violence, of Maryland case) violation 18 U.S.C. (including since 2011 of. 924(c).3 § additionally Edwards was all 20 those defendants cases charged with being possession a felon Appellants were On appeal, black. have agreement plea 3. Bowden entered a mately ten-year and ulti- received a sentence. submission, or- the court in- government’s prosecutions to 8 figures those revised produce Ap- government to defendants, dered the all whom volving 32 forth the identify set page, one which appeal, Appellants pellants black. Also selecting rob- “procedures guidelines involved ‘crew[ ]’ white a “known Dis- 5. The court noted target.” Suppl. distribution” J.A. beries and way in any members were is not Maryland page whose “this while trict animus, “not the discriminatory dis- but prosecuted, suggestive arrested sting’ [Appel- or other insofar a ‘stash house closure is warranted subject of Br. 36 Appellants way investigation.” have would otherwise lants] Paschall, Nos. 13- (citing United States criteria for se- learning government’s (D.Md. July 359, 13-360, 13-361 at 5-6. individuals.” Id. lecting targeted this evi- 2013)).4 argue Appellants contend appeal, On discovery support them Armstrong entitles dence stan- not be held should claim. enforcement their selective applies to claims selective dard as seek “discov- Broadly speaking, prosecution rather than selective enforce- methodology employed ery concerning the showing ment, evidentiary and that cases, cri- their selection ATF in these discovery beyond what entitles them informants, their use targets, teria by the court. Our district was ordered enforcement law any ensure efforts novo. See United States review is de innocent and the otherwise ensnare did Venable, 893, 900 lacking predisposition.” those B.

Br. 22. Court ad- Armstrong, Supreme Appel denied court The district proof applicable the standards dressed motion, their evidence finding that lants’ i.e., prosecution, to a claim of selective discovery satisfy the standard did brought “prosecutor has claim that the Armstrong, forth in set United charge the Con- for reasons forbidden 1480, 456, 116 134 L.Ed.2d S.Ct. 517 U.S. 463, stitution,” as race. 517 U.S. at such Nevertheless, (1996). or the court 687 explained that 116 The Court S.Ct. 1480. investigate government dered the United States Attorney General “playbook” a manual or ATF had whether by the having designated been Attorneys, operations and sting house to stash related help the nation’s execute President to the court such manual provide any “pre- laws, enjoy “broad discretion” and government The in review. for camera regularity” prosecuto- in their sumption manual that operations produced an 464, at 2013, rial Id. S.Ct. July after the events decisions. in was created omitted). indicated, dispel “In order to (quotations government The this case. prosecutor has presumption District however, agents in the that ATF a criminal equal protection, defen- conduct violated Maryland had been trained to the clear evidence present must stings prior their inves dant ing demonstrating prose- contrary” by The Appellants; tigation of Bowden and discriminatory effect policy “had government provide cutorial court ordered by a discriminato- for ... was motivated training materials to the court any such 465, at 116 S.Ct. 1480 reviewing ry purpose.” Id. After review. in camera dispute Paschall case. government does not 4. of the or their characterization lants’ statistics omitted). (quotation presented showing The defendant must evidence (1) similarly both situated Norfolk-Newport “establish Virginia, News area of of a different race were individuals “more than 90%.of those indicted ... since (2) that prosecuted, and decision 1992 for crack cocaine or in faith.” prosecute was invidious bad black.” 97 at F.3d 745. We found Olvis, States v. 743 this insufficient to demonstrate a discrimi (4th Cir.1996) omitted). (quotations effect, natory provided the data “no statistical evidence the number of obtaining for The standard discov actually blacks who were committing crack ery, support prosecution aof selective greater cocaine per offenses whether a ¡is only “slightly for than claim lower” centage of whites prose could have been Venable, proving the claim itself. F.3d cuted 'for such crimes.” Id. at 745. at “clear evi presenting 900. Instead appropriate an “Without basis for compari dence,” produce the “defendant must son, raw the percentage data about making a ‘some evidence’ ‘credible show crack prove[d] black cocaine' defendants ing’ discriminatory both effect and dis Venable, nothing.” Similarly, Olvis, criminatory F.3d at intent.” 743. showing found that statistics that blacks discovery imposes “many Because of the up approximately made 87% those present costs when the Government must charged- with certain firearm offenses respond prima to a case of selective facie Virginia the Eastern District did not prosecution,” obtaining the standard for discriminatory in constitute evidénee discovery “correspondingly rigorous” tent, provided as the data “no statistical significant and “should itself be a barrier evidence about the number blacks who litigation of insubstantial claims.” actually committing firearms 464, 468, offenses Armstrong, at 517 U.S. S.Ct. dr greater whether a percentage of whites have been prosecuted for such could This adopted Armstrong’s Court has crimes.” 666 proving prosecution for standard selective proving the standard en- selective similarly statistical evidence Bullock, forcement. See United States v. provides appropriate for compari- basis We have son, similarly as it contains no data on not, however, specifically addressed wheth- situated white individuals could have who er Armstrong’s discovery ap- standard targeted been inves- plies in the selective enforcement context. Instead, tigations Appel- not. but. were Nevertheless, provides this standard point lants to one “involved in white crew starting point for analysis our robberies and distribution” in the discovery lants’ motion. of Maryland. Appellants District Br. 36. clear, however, It from is far this evidence, that

Appellants’ in statistical situated,” “similarly crew is in the sense dicating prosecuted that all 32 defendants that present “their circumstances dis- cases in the District of tinguishable Maryland black, legitimate fac- [enforcement] not have been does meet might justify making tors different Armstrong’s discovery standard. We have explained respect decisions appropriate [enforcement]' that “absent an with ba Venable, comparison, sis for them.” at statistical evidence See 900-01. [of disparity] Department racial cannot a re- any press alone establish While Justice Olvis, element of claim.” lease indicates that' discrimination the Paschall defen- Olvis, 97 F.3d at 745. In drug trafficking defendants dants were involved in and 100 ho known, offer other Appellants at Because invasions, 745. it is not home

armed ATF’s actions were--“invidi crew members’ evidence example, whether they faith,” not shown they indicated that have bad histories ous criminal Thus, rob- to a stash house Appellants receptive discriminatory intent.6 be ATF had scenario,- making 'Or whether bery forth evidence” put have not “some crew, infiltrating undercov- means the elements showing” of a “credible example is Furthermore, this isolated er.5 claim. discrimination evidence,” Armstrong, “anecdotal more however, that argue, 1480,. it is than 470, S.Ct. at 116 U.S. 517 claim be enforcement should selective demonstrating that “statistical evidence” discovery articulated held to the standard could,have of whites greater percentage “a prose of selective Armstrong for claims Venable, 666 [investigated].” See been important highlight cution. at F.3d types proving two differences if assumed Even 1First, that it is note claims. for com basis “had a evidence statistical that a considerably harder demonstrate effect, discriminatory that showed parison has a discriminato action law enforcement necessarily prove discrimina effect, likely to less be there are ry Olvis, As a tory intent.” similarly individuals situated records matter, involving discre “in general cases investigated' or arrested. never who were crimi ‘essential judgments tionary in a explained, As Circuit has the Seventh statistical evidence justice process,’ nal in traffic involving profiling racial case ... a disparity insufficient infer racial stops: (quoting discriminatory purpose.” prosecution selective meritorious 279, 297, 107 McCleskey Kemp, v. 481 U.S. claim, would be a criminal defendant (1987)). 1756, Appel 95 L.Ed.2d S.Ct. arrested for to name others able evidence, its relative statistical lants’ not prosecuted offense who were same sample size weak basis ly small agen- arresting law enforcement by the clearly insufficient. See id. comparison, is of, 5, of, Office, Md., merely spite its Dept, adverse cause Atty’s Dist. of See U.S. Justice, group.’" Charged upon In A Commer- Vena effects an identifiable Defendants (July Drug Conspiracy ble, Burglary Ring Wayte (quoting cial at 903 18, 2013), https://www.justice.gov/usao-md/pr/ 1524, States, 105 S.Ct. 470 U.S. 16-defendants-charged-commercial-burglary- (1985)). L.Ed.2d ringand-drug-conspiracy (describing defen- suggest deviated Appellants also burglaries, committing "commercial dants as by failing investigate Ap- protocol from its robberies, home invasión armed arsons backgrounds to pellants' criminal ensure stores, gas sta- other crimes at convenience offenders, and that violent tions, institutions, restaurants[,] such financial purposes stores,” improper is "evidence that liquor "[slates taken,” deviation homes and which Arlington Heights primarily targeted playing role.” Vill. ’are and ATMs 252, 267, cigarettes "PJottery Corp., are also tickets and 429 U.S. Metro. Hous. Dev. valuables”) (saved (1977). along taken with other Howev- L.Ed.2d 450 S.Ct. attachment). opinion ECF er, investigation protocol requires of the ATF target, The record indi- in this case Bowden. "willfully Appellants allege ATF that 'was investigated Bowden and that cates that ATF racially impact disparate of its blind” for a stash house he ATF’s criteria satisfied however, sting operations; willful target. Finally, Ap- isting presented ATF that discriminatory evince in- blindness does not tent, involving opportunity pellants with a lucrative implies "discriminatory that intent kilograms of does 10 to 15 cocaine more than par- a government or reaffirmed the ‘selected discriminatory suggest motive. a not part be- of action ticular course at. least cy; conversely, plaintiffs allege may that the court who and need their testimony they to racial stopped profiling were due if to decide whether shorn untruthful not, barring type some of test statements the affidavits would have es- operation,. provide be able names probable tablished cause.... Before whp similarly of other situated motorists (or trials) holding hearings civil district not stopped. were judges regularly, properly, allow Police, discovery Chavez Illinois State nonprivileged into aspects In the stash house agents sum, what have said or done. context, sting a con- would face defendant sort of considerations that led difficulty obtaining credible evi- siderable outcome Armstrong apply not to a do similarly dence situated individuals who contention that agents of "the FBI or investigated by if ATF. Even engaged in racial discrimination could, example, defendant use state or selecting targets when for sting opera- prosecutions identify federal indi- white tions, or deciding suspects when which in drug viduals involved offenses or armed prosecution. to refer for robberies, discovery without into what Davis, United States v. 720- individuals, ATF knew about these the de- (7th Cir.2015) (en banc) (finding evi- pressed fendant be demop- hard “overwhelming dence majority” strate that distinguishing there were justify prosecuted factors that would different enforce- defendants in stash house treatment. cases the Northern District Illinois ment or Hispanic were black sufficient war- Second, . Appellants note that Armstrong basis). discovery rant on an incremental was primarily concerned with respecting prosecutors, of federal who province Appellants’ arguments are tak well “designated by are statute as the Presi However, en. if even we assume that their delegates dent’s to help him” execute the evidentiary is showing sufficient to war laws, nation’s enjoy “pre and thus a. enforcement, discovery rant into selective sum[ption] they have properly- dis Appellants have they shown are charged their Armstrong, official duties.” to discovery beyond entitled gov what 517 U.S. S.Ct. 1480. Law already ernment has produced. gov however, officers, enforcement are not ac already ernment has provided Appellants equal Again, corded the Sev deference. with ATF’s criteria choosing cogent analysis: enth Circuit offers sting target, and the district court Agents of the FBI ATF and are not an even reviewed broader set ATF doc protected by powerful privilege or cov- uments for information Appel relevant to presumption ered of constitutional lants’ selective enforcement claim. ATF’s prosecutors, agents behavior. Unlike selection criteria suggest any do not dis cases, regularly testify in criminal Instead, criminatory they motive. indicate credibility may relentlessly be at- that ATF protocol selecting followed its They tacked by defense counsel. Bowden, target, Bowden as a may have to testify pretrial proceed- ATF, Appellants. recruited conclude We ings, hearings such motions to evidence, have received all the dis suppress 'again their hon- ' covery entitled, to which af esty open challenge. Statements agents firm district make affidavits search court’s denial of their may contested, or arrest warrants be motion for discovery.

102 duct”). matter, practical only “As a those

III. particular con alleging claims violation challenge the dis next Appellants likely guarantees are to suc stitutional to dis their motion trict denial court’s Jones, 13 United v. ceed.” States F.3d process indictment due miss (4th Cir.1993). 100, 104 facts are the relevant grounds. Because our is de novo. See review dispute, not in 222, Hatcher, v. 560 F.3d to a theory pro due

United States Cir.2009). (4th However, 224 is than clear. cess violation less appear to that primary arguments their be claim that ATF’s conduct in Appellants by failing to outrageously ATF behaved to violate egregious so this case was rights investigate Appellants pre whether were process Amendment due their Fifth prosecution. They in preclude committing and thus stash rob disposed house first theory, articulated United voke the crimes, by providing or similar beries Russell, 423, 411 93 S.Ct. States v. U.S. an lucrative as be unreas inducement so (1973), 1637, 366 that there L.Ed.2d 36 Appellants appear to object onable.7 the conduct of may be “a situation which generally of the stash house ATF’s use agents outrageous so enforcement is law investigative an tool. scenario as absolute process principles would that due arguments address these turn. We ly invoking judi government from bar the to obtain processes cial a conviction.” government deny The that does 431-32, previ at 93 S.Ct. 1637. We have knowledge Appellants had no ATF be con “outrageous ously observed to Agent them fore Bowden introduced circumscribed,” “highly is duct” doctrine Rogers, subsequently under Hasan, 338, v. 343 718 F.3d United States investigation took to determine whether (4th Cir.2013), rare applies “only they had' violent criminal histories and Jones, 18 United States v. F.3d cases.” targets appropriate were therefore 1145, govern 1154 Indeed, sting. appears it ‘shocking* ‘of “must actions be ment’s only Williams Hare have minimal of fundamen traditional notions fensive to records criminal and no record of violent Hasan, tal at 343 fairness.’” 176, is See J.A. 180. While this crimes. Osborne, (quoting troubling, particularly since (4th Cir.1991)). also Os See F.2d years face of im now each more than borne, “high (noting prisonment, does rise the level of appellate shock courts threshold” faced “extremely government outrageous con- conduct. unsavory entrapment When the 7. Government inducement and a defendant’s one. issue of submit predisposition jury, "comprehends the elements an guilty are lack ted to the verdict defense, entrapment States v. See United finding appel of no entrapment” and “an (4th Cir.1998). Ap- Sligh, 142 F.3d may court late overturn determination acknowledge pellants the district court only if no of fact rational trier could have argue gave entrapment allowed them predisposition beyond a found reasonable jury they request- entrapment instruction doubt, light viewing in the most the evidence appeal, On assert ed. prosecution.” United States favorable Thus, raising entrapment an claim. Jones, Cir.1992). arguments we under the outra- evaluate predisposition principles explained Under the geous government conduct standard. herein, have juror a reasonable could found Nevertheless, reject that we would note Appellants. predisposition on part claim, raising entrapment an

103 targeted by ATF outrageous were not government conduct where Bowden, by sting.involved tar to 46 kilograms but recruited whom 28 total of cocaine); United Mayfield, States v. an 771 geted based information that he on was 417, 422, (7th Cir.2014) (en banc) F.3d 441 active, armed trafficker. would “[I]t (describing to sting that involved 26 38 ability to in undermine law enforcement’s kilograms total of “typical cocaine as-a its vestigate .apprehend criminals if not, robbery” stash-house by acceptable otherwise conduct became out itself, “qualify illegitimate as an induce rageous merely because an with individual ment”). Appellants typical assert that a history gov no known criminal the whom Maryland stash contains less house than suspect not of activi ernment did criminal kilograms 15 to 20 However, cocaine. ty joined the the last enterprise criminal at assuming 15 kilograms even 20 ais at the behest codefendants.” minute large by Maryland standards, quantity Black, 294, v. United States F.3d 308 733 render ATF’s conduct out (9th Cir.2013). Furthermore, n. 11 it was rageous,, particularly Agent Rogers since not outrageous government the infer various executing concocted obstacles to people that Bowden would recruit who robbery, including the that the stash house willing requisite experi and had the guards had three robbery and the armed ence to rob an armed stash house. This place during day. would take the Cf. inference was bolstered' Kindle, 401, United States v. 698 F.3d ready response Agent Rogers’s propos (7th Cir.2012) (Posner, J., 414-15 dissent They al. proposal, assented to the at their ing) (explaining stings that stash house meeting first Rogers, planned how disreputable “a in part tactic” because “the robbery, no point execute the at at can police suspect convince a the tempted to ready withdraw. com “[T]he stash house shockingly would be a mission of amply 'the criminal act' demon commit”), simple and crime to vacat easy; strates predisposition.” the defendant’s ed en banc sub nom. United States v. States, 540, Jacobson 503 U.S. Mayfield, 417 1535, 112 118 S.Ct. L.Ed.2d 174 Finally, outrageous we do not find it (1992); Osborne, see also 37- ATF to stings utilize stash as an house (“[T]he 38 fact that a defendant has not investigative tool. We have noted that previously any committed related crime is “[o]utrageous is not a properly ap- label proof of lack of predisposition. Rath plied sting conduct it is a because or er, predisposition.is from found the defen sting operation involving reverse contra- ready response dant’s to the inducement Goodwin, band.” United States v. 854 offered.”). Cir.1988). Concededly, F.2d outrageous We do find the sting gov- considerable entails inducement, kilograms size the including so- ernment direct involvement — of cocaine in This amount is consid total.8 target licitation the and total control erably less than the quantity cocaine at parameters partic- over robbery, of the issue in ularly other stash quantity cases. cocaine held See, Black, e.g., (finding at 299 no appears highly F.3d fictitious house —and us, purposes entrapment "Inducement” express before on view whether the overreaching plus means "solicitation some qualifies amount of cocaine as an at issue improper part gov conduct entrapment "inducement" sense Hsu, ernment.” United word. (4th Cir.2004), entrapment As is not -, may 192 We further 135 S.Ct. L.Ed.2d 569 to abuse.

susceptible (2015), using of such tool Act not con- propriety robbery the a a Hobbs does question no violent stitute of prosecute' to individuals a crime violence and therefore predicate and who demonstrated éannot as the crime a histories serve criminal ‘ § 924(c), inclination to the less violent conviction under or the pursue an related However, in charge the for outra Count ar- conspiracy Plan standard 3. These B.9 guments unavailing. high, and we government conduct geous say that ATF’s conduct this ease cannot outrageous as shock con was “so to the A. Osborne, the 935 F.2d science of court.” Rosemond, the Court held Supreme no of to appeals know of court at 36. We 924(c) § that to a of establish violation otherwise, hold while several have found based that theory on the the defendant process no violation even when ATF’s due offense, govern- aided the the and abetted objectionable than it conduct was more ac- prove ment “that must the defendant Black, F.3d at 299 See 733 was here. tively underlying drug participated the conduct (finding outrageous no where violent crime with advance or. targets by paying a confiden “trolled” knowledge a use or confederate would peo find “try tial informant some carry during gun a commis- the crime’s invasion, willing a home to commit ple” sion.” 134 at 1243. is because S.Ct. This “going the informant did

which accomplice “[w]hen an knows beforehand part try in a of “bad town” bars” design a carry gun, of a confederate’s he United v. people”); “meet see also can ... attempt plan to alter that with- (5th Rodriguez, 603 Fed.Appx. Cir. enterprise.” from draw Id. at 1249. Sanchez, 2015); United States However, an knows accomplice “when (11th Cir.1998). argu Appellants’ gun until at nothing appears it a ments, alone whether considered or collec scene, already may completed he have his outrageous tively, govern do establish may acts assistance ... late [or] We affirm the district conduct. ment point opportunity quit have realistic motion to dis court’s denial Id, case, the crime.” In such “the defen- miss the indictment. requisite dant has not shown the intent to involving gun.” assist crime

IV. challenge Appellants that the dis next convic contend Appellants aiding trict abetting court’s instruc possessing firearm further tions tions of a crime crime were erroneous because did not ance or a trafficking, violence, require ,18 Appellants to know in U.S.C. advance violation (Count 4). 924(c) guns robbery. § would be involved in the contend object did on aid Because district court’s instructions below, abetting plain ap ing liability erroneous instructions error review — States, Robinson, plies. United States v. v. United under Rosemond Cir.2010). —, 1240, 188 must U.S. S.Ct. L.Ed.2d (2014). occurred, that “an error Appellants that un show contend — , States, plain, .was and that the Johnson v. error error affected der U.S. 977-78, Indeed, stage jury plan to 2 the J.A. consistent with the Count found Agent Rogers’s kilogram ship- guilty conspiring lants to traffic "500 cocaine, grams kilograms” but less ment. than 5 rights,” meaning substantial that it [their] of an offense subjected [theories] but “actually pro affected the outcome jury erroneous instructions on one of those Hastings, United States ceedings.” 134 [theories,]” the defendant “must demon 239-40 Even strate that the erroneous given instruction then, the Court “should not exercise [its 'conviction,-not resulted his merely that discretion to correct error] unless the impossible was to tell under which [theo fairness, seriously error the integri affects ry] jury--convicted”). the See also United ty or public reputation judicial proceed of Saunders, States v. Fed.Appx. 285, omitted). ings.” (quotation (5th Cir.2015) 288-89 (finding that Rose- mond error in aiding abetting and instruc Assuming that the district not tion-did affect defendant’s substantial court’s instructions were erroneous and rights jury the given “because was a cor plain, error was the the find that error rect Pinkerton instruction” it was and did affect substantial “reasonably foreseeable that [defendant’s rights. Hare to possessing admitted the co-conspirator] gun a carry a firearm, against Beretta and the verdicts United States v. Young, robbery”); bank may and Williams Edwards be sustained (2d Cir.2014) (ex 561 Fed.Appx. the Pinkerton under theory liability. of plaining that “even if there had been error “The Pinkerton person doctrine makes a substantive, regarding aiding abetting” in light of liable for offenses committed Rosemond, “it was harmless because am by a co-conspirator when commission their ple supported evidence liabil [defendant’s] reasonably is in further foreseeable ”). ity under Pinkerton conspiracy.” ance of the United States v. Ashley, 142-43 Cir.

2010); jury The properly was instructed B. Pinkerton liability and the evidence challenge their firearm amply reasonably demonstrates that was ground that, convictions on the after the foreseeable Williams and Edwards that Supreme Johnson v. Court’s decision co-conspirator a possess a firearm. — States, -, U.S. 135 S.Ct. meeting, At each Williams and Edwards (2015), 192 L.Ed.2d 569 a Hobbs Act the discussed firearms the crew would robbery qualifies no longer as crime of a bring the possibility shooting the Thus, claim, violence. their guards. At point itwas committing convictions in 1 for Count a suggested proceed the crew would Hobbs Act robbery support cannot firearms, without even the context of convictions in Count 4 for possessing a Thus, any Plan B. aiding error the firearm in of a drug furtherance traffick- abetting not satisfy instruction does the violence, ing crime or a crime of or the Robinson, plain error standard. See conspiracy related offense Count 3. at 954 (explaining that under the plain prejudice requirement, error “where not reach We need the merits 924(c) a defendant multiple was indicted under argument.10 prohibits Section the Johnson, Supreme 924(e)(2)(B)(ii). § the Court held that to another.” 18 U.S.C. 924(c) felony” the definition of similarly "violent found Section contains a residual residual Career clause Armed Criminal clause a that defines "crime violence” nature, unconstitutionally vague. Act is any "by felony S.Ct. at a sub- its involves felony” 2557. That clause defines physical against a "violent stantial risk that force any felony pres- person property that "involves may conduct that of another be used in potential physical injury ents committing a serious risk the course of the offense.” SHEDD, concurring: Judge, of a firearm in a Circuit possession furtherance of violence or drug crime legal analy- agree completely I with the explained the district court As crime. separately to majority. I write sis of the found liable jury, Appellants be could that, I majority, am not note unlike the gun in further they possessed if either investigation prosecu- troubled charged in crime of of the violence ance The tion of these defendants. evidence of the 1 or in furtherance Count in this these presented ease shows charged in Count trafficking crime crim- willing to undertake defendants clearly form shows that special verdict including acts—in con- inal violent acts— possessing Appellants guilty jury found illegal robbery nection with armed of both crimes. a firearm furtherance indepen- drugs. Law did enforcement Thus, assuming even See J.A. 978-81. defendants; rather, recruit dently these Act crime that Hobbs they part of a will- were “crew” who were violence, sus may be Appellants’ verdicts robbery at ing to be in the armed involved the jury tained because found leader, Bowden, of their who the behest to pos guilty possessing, conspiring Moreover, the enlisted their involvement. sess, a firearm furtherance of present opportunity had the defendants corn crime of which were but, theory entrapment jury See United States Count victed of this surprisingly under the facts (4th Najjar, Cir. n. 3 case, jury believed these defendants 2002) (explaining general that while “[a] in the predisposed be involved should in cases ... be set aside verdict charged offenses. supportable the verdict is one where another, ground, impossi but is holds, short, majority correctly as the selected[,] ground jury ble tell which lawfully, itself the Government conducted by [sjpecial problem obviate verdicts properly con- defendants were these allowing upon a court what determine nothing There is victed sentenced. legal jury factual and basis the decided troubling in that. omitted)). (quotation Ac question”

given uphold

cordingly, Appellants’ we convic

tions.

V. raise chal- other various

lenges to their conviction and sentences. arguments

We have reviewed Thus,

and find them be merit. without affirm the district

we court.11

AFFIRMED 924(c)(3)(B). argue represented Appellant § U.S.C. 11. Because Edwards Johnson, counsel, by logic resid- deny extension of the motions leave his 924(c) §in ual clause is also unconstitutional- supplemental pro briefs. See United file se vague. Appellants argue ly that a further Penniegraft, 569 n. qualify Hobbs Act does otherwise Cir.2011). violence, be the as a crime of thus cannot 924(c). § basis for a conviction under

Case Details

Case Name: United States v. Shane Hare

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Apr 19, 2016

Citation: 820 F.3d 93

Docket Number: 14-4758, 14-4770, 14-4882

Court Abbreviation: 4th Cir.