United States v. Willis
Case Information
*1 BEFORE: CLAY аnd SUTTON, Circuit Judges; and GREER, District Judge. [*]
CLAY, Circuit Judge.
Defendants Nancy Willis (“Willis”) and Vickie Herron (“Herron”),
appeal their convictions and sentences. On October 21, 2005, in connection with seven armed
robberies, Defendants were convicted by a jury of interfering with commerce by means of robbery,
in violation of
BACKGROUND
Willis was convicted of robbing seven women’s clothing stores in or near Mеmphis, Tennessee between July 5, 2003, and July 3, 2004. (J.A. 62-78) Herron was convicted for participating in the July 3, 2004, robbery. The facts underlying each robbery are set forth below. I. First Robbery
On July 5, 2003, Willis robbed Fashion Cents in Memphis, Tennessee, approximately ten minutes before the store closed at 8:00 p.m. Melissa Williams (“Williams”), a store employee, observed Willis “walk[ing] around and [ ] shopp[ing] for clothes.” (J.A. 607) Willis “brought the clothes up the registered [sic], [and] she laid them down on the counter.” (J.A. 607) Willis “walked around and [ ] looked at [ ] shoes and then when she came back around [a] panty rack she had [a] gun out.” (J.A. 608) Willis “pulled the gun out on [Williams] and she told [Williams] to tell [a store] employee to get in the dressing room.” (J.A. 608) Willis “told [Williams] to put all of the money in [a] bag with the clothes” she selected, threatened “to blow [Williams’] brains out,” and “directed [Williams] to get in the dressing room with the [other] employee after [Williams] put the money in the bag.” (J.A. 609) Willis left the store taking $1100 in cash and clothing. II. Second Robbery
On September 6, 2003, Willis robbed Cato in Millington, Tennessee. As with the first robbery, Willis entered the store a short time before closing time and “was in the[ ] [store] shopping,” (J.A. 491), for “plus sizes,” (J.A. 733). At the time of the robbery, two employees, Lori Woodward (“Woodward”) and Ashley Smith (“Smith”), were in the store. Willis “came up to the register with an arm load of clothes and cаme up to check out.” (J.A. 492) As Woodward “was ringing her up . . . . she pulled a gun.” (J.A. 492) “[Willis] made [Woodward] get in the dressing room and shut the door.” (J.A. 492) “[Willis] put something on [Smith’s] back which [Smith] believe[d] [was] a gun” because “[i]t felt like something hard against [her] back.” (J.A. 493) Woodward testified that Willis used a “black pistol” during the robbery. (J.A. 738) “[Willis] made [Smith] give her the money in both registers and then [Willis] made [Smith] go and get in the dressing room.” (J.A. 493) Willis left the store with approximately $1800 and “a bunch of clothes.” (J.A. 494) At trial, Smith’s testimony was consistent with Woodward’s testimony. Compare J.A. 491-94 with J.A. 732-37.
III. Third Robbery
On October 5, 2003, Willis robbed another Cato store in Memphis, Tennessee. As in the first and second robberies, Willis arrived “right before [ ] closing time” and selected clothing. (J.A. 565) Willis “came up to the register and laid her clothing.” (J.A. 568) As Carla West (“West”), the store manager, “was still ringing her up, [Willis] came on the opposite [side] of the register that [West] was on, and . . . pulled the gun.” (J.A. 568) “[Willis] told [West] to give her the money. And [West] said no.” (J.A. 568) Willis asked for the money again, but West again “said no.” (J.A. 568) After the second refusal, “[Willis] said give me the money or I’m going to blow your fucking head off.” (J.A. 568) After obtaining the money, Willis directed West and the other store employee to go into “the fitting room.” (J.A. 570) Willis left with the money and “two jogging outfits which would include a jacket and a pair of pants.” (J.A. 570)
IV. Fourth Robbery
On May 8, 2004, Willis robbed Holliday Fashions in Memphis, Tennessee. Tilisha Williams (“Tilisha”), the store manager, was present during the robbery. According to Tilisha, “[t]hree females” robbed the store and she “distinctly noticed the older lady, the heavyset lady,” (J.A. 624), who “was very heavy especially around the waist,” (J.A. 632). “[T]he older heavier-set lady was just walking around in the career section. And the younger two [women] were in the back picking out clothing. And when they came up to the counter, they had two hands full of clothing.” (J.A. 625) “[Tilisha] was standing [ ] at the counter having a conversation with the two younger girls” when “the older lady escorted . . . [an] employee[ ] to the front with a gun at her back.” (J.A. 626-27) “[O]ne of the younger girls . . . told [Tilisha] to go ahead and start putting the clothes in bags. And right after that the heavyset lady came around the cash wrap and told [Tilisha] to open up the registers” and “the safe.” (J.A. 627-28) (format omitted). Willis forced the store employees “in[to] the layaway room and [ ] closed the door.” (J.A. 630) In this robbery, Willis and her partners took “cash and clothes . . . [and] some personal items.” (J.A. 631-32)
V. Fifth Robbery
On May 30, 2004, Willis robbed another Fashion Cents store in Memphis, Tennessee. As in the fourth robbery, Willis was accompanied by two other women. Willis and the two other women entered the store “[r]ight before [the] closing time” and selected clothing. (J.A. 454) Sharon Scarbrough (“Scarbrough”), the store manаger, “went up to the register and started ringing out one of the young ladies. [Scarbrough] started taking off the sensors and the hangers and scanning it.” (J.A. 457) “[T[he heavyset lady came behind [Scarbrough] and put one foot behind the counter.” (J.A. 458) “[Scarbrough] continued to ring, and then [Willis] made a sound, she went psst, psst, real loud. [Scarbrough] was . . . not turning around . . . . [and] sat there playing stupid ringing and then [Willis] did it again real loud.” (J.A. 458-59) “[Scarbrough] grabbed a shirt and [ ] said it did not have a tag on it.” (J.A. 459) She “put the shirt between [her] and the heavyset lady and tried to bend down to hit the panic button,” but “[Willis] said, don’t hit that button, bitch.” (J.A. 459) “[Willis] grabbed [Scarbrough] by [the] arm and slung [her] against [a] shoe wall and [she] hit it, kind of [falling] back а little bit.” (J.A. 460) Willis and her partners were armed and placed the store employees “in the fitting room.” (J.A. 460) They took $2,911 and one of the “largest shopping bags . . . fill[ed] up [with] just tons of clothing.” (J.A. 462) The stolen merchandise had security sensors attached to it.
VI. Sixth Robbery
A day after the fifth robbery, on May 31, 2004, Willis and her accomplices robbed another Holliday Fashions store in Millington, Tennessee. Willis and the two other women used the same strategy: they entered the store approximately “10 or 15 minutes” before the store closed, (J.A. 111), selected clothing, “walked up to the counter with an arm load of clothes,” (J.A. 113), and brandished a firearm as the еmployees were “exchanging hangers and taking the sensors off,” (J.A. 111). The robbers forced the store employees to go into “the fitting room,” (J.A. 115), “lined [the employees] up . . . [and] told [them] that they were going to kill [them],” (J.A. 117). The robbers fled with approximately $1,500 and “several bags” full of merchandise. (J.A. 118) After the robbers left, the employees tried to call the police, but “[the robbers] had ripped all of the phones out of the walls and [the employee’s] purses were gone.” (J.A. 116) The store manager, Ivy Bodry, had “money orders to pay [her] rent” in her purse, (J.A. 120), that were “made out to Smith Investments,” (J.A. 121). VII. Seventh Robbery
Last, on July 3, 2004, Willis robbed another Holliday Fаshions store in Memphis, Tennessee. This store is located next to the Cato store Willis robbed during the third robbery. In this robbery, Willis was assisted by Herron. Defendants entered the store a short time before closing, selected clothing and other items, and brandished a firearm at the cash register. Defendants forced three store employees, Kathryn Guzman (“Guzman”), Ashley Johnson (“Johnson”), and Sarah Tate (“Tate”), into the dressing room, and took money, clothing, jewelry and sunglasses.
Jared Huey (“Huey”), the boyfriend of a store employee, observed Defendants leaving the store “with three or four bags in each hand” and driving away in a red Pontiaс Grand Am with license plate number QWS399. (J.A. 340) Huey entered the store and found the employees. Law enforcement officials determined that the vehicle was a rental car that was rented to a woman who lived at 924 Barbara Drive, Memphis, Tennessee. On July 5, 2004, detectives went to the address and discovered that it was the residence of Willis and her mother. Detectives spoke to Willis’ mother and requested that she contact Willis. Willis arrived in the vehicle and was arrested.
Law enforcement officials discovered “numerous sunglasses, earrings, jewelry box, [and] clothing,” in Willis’ home with Fashion Cents and Holliday Fashions “price tags оr . . . [security] sensors.” (J.A. 174) The stolen merchandise was connected to the fifth and seventh robberies. Police also discovered two money orders in Willis’ purse made out to Smith Investments.
After Willis was arrested, store employees identified Willis from a photographic array as a robber in connection with the armed robberies. In February 2005, police determined that Herron, Willis’ neighbor, assisted in the seventh robbery. Store employees identified Herron from a photographic array as one of the robbers involved in the seventh robbery.
On March 8, 2005, a federal grand jury in the Western District of Tennessee returned a
seventеen-count indictment against Defendants. The indictment contained seven counts against
Willis, and one count against both Willis and Herron, for interfering with commerce by threat or
violence, in violation of
Defendants were tried together before a jury on October 17, 2005. At trial, store employees testified against Defendants. On October 21, 2005, the jury returned a guilty verdict against Defendants on all charges. On February 27, 2006, Herron was sentenced to a term of imprisonment of 140 months. Willis was sentenсed to a term of imprisonment of 160 years on February 28, 2006. Defendants filed timely notices of appeal. This Court has consolidated Defendants’ appeals.
DISCUSSION
I. Willis’s Motion to Sever Counts of the Indictment
Willis argues that the district court erred in denying a motion to sever the counts in the
indictment. This Court reviews a district court’s denial of a motion to sever counts of an indictment
for abuse of discretion.
United States v. Atchley
,
UnderRule 8(a) of the Federal Rules of Criminal Procedure , [an] indictment . . . may charge a defendant in separate counts with 2 or more offenses if the offenses charged--whether felonies or misdemeanors or both--are of the same or similar character, or are based on the same act or transаction, or are connected with or constitute parts of a common scheme or plan.
However, “[i]f the joinder of offenses or defendants in an indictment . . . appears to prejudice a
defendant . . . the court may order separate trials of counts, sever the defendants’ trials, or provide
any other relief that justice requires.”
This Court has found that “[t]he resolution of a
As a threshold matter, the government argues that Willis failed to renew the severance
motion at the end of the evidence. The failure to renew a severance motion may result in a waiver
of the motion. “[T]his [Court] is barred from ruling on the merits of appellants’ claim . . . . [because]
a motion to sever counts or co-defendants is deemed waived if it is not renewed at the end of the
evidence.”
United States v. Hudson
,
Even if we assume arguendo that Willis preserved this claim, we find that the district court did not abuse its discretion in denying the severance motion. Willis argues that “no reasonable juror could distinguish between the evidence presented on each of the various counts.” (Willis’ Br. at 29) Willis also contends that “it [was] impossible for the jury to se [sic] the cases as separate and distinct.” (Willis’ Br. at 30) Willis does not cite any facts or case law in support of these arguments. This Court has found that “absent a showing of substantial prejudice, spillover of evidence from one [count] to another does not require severance.” Hang Le-Thy Tran , 433 F.3d at 478 (internal quotation marks and citation omitted). “Evеn if prejudicial spillover actually occurred, the defendant would still need to prove that such a spillover caused her substantial prejudice.” Id. “A difference in the quantum of evidence as to the [different] counts is not grounds to overturn a denial of severance unless there is a substantial risk that the jury could not compartmentalize or distinguish between the evidence produced on each count.” Id. (internal quotation marks and citation omitted). Willis makes only conclusory allegations of prejudice; we therefore find that the district court did not abuse its discretion in denying the severance motion.
II. Double Jeopardy
Willis аrgues that she was placed in double jeopardy at trial. This Court reviews
de novo
the
denial of a motion to dismiss presenting double jeopardy issues.
United States v. DeCarlo
, 434 F.3d
447, 452 (6th Cir. 2006) (citing
In re Ford
,
“The Double Jeopardy Clause of the Fifth Amendment provides: . . . nor shall any person be
subject for the same offense to be twice put in jeopardy of life or limb.”
United States v. Engle
, 458
F.2d 1021, 1025 n.5 (6th Cir. 1972) (alteration in original) (internal quotation marks omitted). A
“verdict of acquittal [i]s final, and could not be reviewed . . . without putting [a defendant] twice in
jeopardy, and thereby violating the constitution.”
Fong Foo v. United States
,
At trial, Willis argued that the government did not present sufficient evidence that a firearm was used during the robberies. In pertinent part, the record reflects the following colloquy:
Counsel: I would like to renew my motion for judgment of
acquittal mainly as to the USC 924(c) matters. The government has put on no prоof that these were, in fact, firearms under the definition of a firearm . . . .
. . .
The Court: . . . In looking at the 924(c) motion, I said yesterday that the testimony in the record combined with the . .
. testimony that it was a weapon was sufficient, I thought, to get the case to the jury.
In the interim I have gone back and looked again at the . . . law and looked at the specific elements.
. . .
I’m going to grant the defense motion regarding that charge --
Government: Judge, could I address you on some law on that?
The Court: Sure.
. . .
Government: . . . All that is required is some evidence, such as the testimony of an observer, that would permit a reasonable jury to infer that the object carried by the defendant was a firearm.
. . .
And that is U.S. versus Jones, 907 Fed. 2d 456, and it’s also Parker versus the United States, says the testimony of bank tellers who observed the weapon.
. . .
The Court: . . . When I focused on this case – on this situation earlier, I focused on the language of the statute . . . .
. . .
The government has to prove in this case that . . . a firearm was used in connection with a crime of violence.
Clearly the government has met its burden . . . to get the case to a jury that a crime of violence was committed because the witnesses all testified that people robbed them and that they had a gun.
. . .
But in looking more closely at these other cases, the Sixth Circuit seems to say that while a statutory definition is very technical, that this element can be satisfied by lay testimony . . . . th[e] testimony combined with [sic] they said they would blow my brains off is enough to get to the jury . . . . it will be up to the jury to decide whether or not the proof is . .
. devoid . . . .
. . .
So having read more closely these other cases and not just focusing on the statute and the commentary, as I did last evening, I will have to reverse that earlier ruling and allow the case to go to the jury.
(J.A. 793-821) (emphasis and formatting added). As illustrated above, the district court appears to
have reached a decision on Willis’ motion, but reviewed case law to ensure that its holding was
legally сorrect. After reviewing the relevant case law, the district court reversed its earlier ruling.
Ultimately, the district court allowed the jury to decide whether Willis used a firearm in the
robberies. Willis maintains that this reversal violated her double jeopardy rights. Willis offers no
case law in support of this proposition. The record clearly indicates that the district court allowed
the parties to present additional arguments and revisited pertinent case law to reach a determination.
As the Second Circuit has recognized, “[a]n oral grant of a motion for acquittal is ‘no more than an
interlocutory order,’ whiсh the court has ‘inherent power to reconsider and modify . . . prior to the
entry of judgment.’”
United States v. Washington
,
In the instant case, “the [district] court [ ] reversed its own ruling outside the jury’s presence
and in a timely fashion. Such conduct did not subject [Willis] to a ‘second trial’ or ‘successive
prosecution.’”
Washington
,
III. Sufficiency of the Evidence
Defendants mаintain that the evidence presented at trial was constitutionally insufficient to
support a conviction on any of the counts contained in the indictment. The standard of review for
a challenge to the sufficiency of the evidence is “whether, after viewing the evidence in the light
most favorable to the prosecution,
any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.”
United States v. Davis
,
“‘When reviewing the sufficiency of evidence in support of a jury verdict, this Court views
the evidence in thе light most favorable to the prosecution and gives the prosecution the benefit of
all reasonable inferences from the testimony.’”
United States v. Jackson
,
A. Robbery Convictions
In the instant case, the government proffered ample evidence showing that Willis committed seven armed robberies. The government presented testimony from employees of the different stores that were robbed. “Victim eyewitnesses from all but one of the robberies positively identified Willis as the woman who robbed them.” (Gov’t Br. at 21) As to thе May 31, 2004 robbery where there was no positive eyewitness identification, police officers discovered money orders that were taken during the robbery in Willis’ purse. Willis was seen leaving the scene of the last robbery and the police discovered stolen merchandise during Willis’ arrest. Similarly, there was evidence that Herron assisted Willis in the last robbery and store employees identified Herron as one of the robbers. Therefore, we find that the testimony of the store employees supports Defendants’ convictions for the robberies.
B. Firearm Convictions
Defendants contend that there was insufficient evidence to supрort a conviction for using a
firearm in a crime of violence. The use of a firearm in furtherance of a crime of violence triggers
statutory mandatory minimum sentencing provisions set forth in
any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possеsses a firearm.
[t]he term ‘firearm’ means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.
In this case, the government did not introduce a firearm into evidence, and did not offer any
photographic or video evidence that Defendants used a firearm during the robberies. However, store
employees testified that they saw a firearm. Willis maintains that this witness testimony is
insufficient to prove that she used a firearm during the robberies, especially because the store
employees are not experts on firearms. This contention is without merit. “Although
C. Conspiracy Conviction
Defendants contend that there was insufficient evidence to support a conviction for
conspiracy. Conspiracy to interfere with commerce by threats or violence,
(1) an agreement between two or more individuals,
(2) affecting interstate commerce,
(3) to obtain property from another,
(4) with consent,
(5) induced under color of official right.
United States v. Benton
,
In this case, Defendants’ conduct in connection with the seventh robbery clearly demonstrates a tacit understanding and agreement to rob the Holliday Fashions store on July 3, 2004. Defendants went to the store together, selected clothing, brandished firearms and worked together to intimidate store employees and rob the store. Defendants’ conduct clearly indicates the adoption and implementation of a plan or strategy for the robbery. This plan evinces a conspiratorial agreement.
Defendants maintain that the government failed to prove that the conspiracy lasted “from on
or about July 5, 2003 to on or about July 3, 2004,” as alleged in the indictment. However, this Court
has found that the exact date of the conspiracy is not an element of the crime.
See, e.g.
,
United
States v. Arnold
,
D. Interference With Interstate Commerce
Willis argues that the government failed to prove an interstate commerce nexus with respect to merchandise stolen from Holliday Fashions. Contrary to Willis’ averments, the record clearly indicates that Holliday Fashions is involved in interstate commerce. In pertinent part, the “[v]ice president of finance” for Holliday Fashions testified at trial as follows:
Question: . . . where is your headquarters?
Answer: Here in Memphis . . .
Question: Okay. And . . . where do you all have stores?
Answer: We have stores in various states, in Mississippi, Tennessee, Louisiana, Arkansas . . .
Question: And . . . is Holliday’s [sic] Fashions . . . a business that does business across state lines?
Answer: Absolutely.
. . .
Question: Does . . . Holliday’s [sic] Fashions stores purchase goods from outside of Tennessee to sell it in stores in Tennessee?
Answer: Yes, we do.
Question: And do you have numerous out of state vendors?
Answer: Yes, a majority of our vendors are out of state.
Question: . . . what percentage would you say of the products in your stores from out of state?
Answer: To be conservative it would be at least 90 percent.
. . .
Question: Do you all serve out of state customers?
Answer: Yes, we do.
Question: Is money that you lose in one of your robberies of one of your Tennessee stores money that you could use to buy goods from outside of Tennessee?
Answer: Absolutely. (J.A. 150-52) (formatting added). The record clearly establishes that Holliday Fashions is engaged in interstate commerce. Willis argues that the government was required to prove specifically that the merchandise stolen by Willis was manufactured outside of Tennessee. However, the government only has to prove that the business engages in interstate commerce. United States v. Dupree , 323 F.3d 480, 485 (6th Cir. 2003). Since the record shows that Holliday Fashions is engaged in interstate commerce, we find that Willis’ claim is meritless.
IV. Cruel and Unusual Punishment
Willis maintains that the district court’s sentence violates the Eighth Amendment’s
prohibition against cruel and unusual punishments because her sentence of 160 years is allegedly
disproportionate to the underlying crime. This Court reviews
de novo
a constitutional challenge to
a district court’s sentence.
United States v. Marks
,
In interpreting the Eighth Amendment, “‘[t]he Supreme Court has articulated a ‘narrow
proportionality principle’ whereby it held that only ‘extreme sentences that are grossly
disproportionate to the crime are prohibited.’”
United States v. Flowal
,
This Court has adopted the “narrow proportionality principle” set forth in
Harmelin
, and
recognized that “only an extreme disрarity between crime and sentence offends the Eighth
Amendment.”
Marks
,
Willis recognizes that “the majority of the sentence was driven by the mandatory [statutory]
minimum requirements of
Willis challenges the reasonableness of her sentence. This Court reviews a sentence imposed
by a district court for reasonableness.
Rita v. United States
, No. 06-5754, – S. Ct. –, 2007 WL
1772146, at *9 (June 21, 2007);
United States v. Booker
,
“In determining the sentence to be imposed, the district court must consider the advisory
Guidelines range and all relevant factors identified in
In the instant case, Willis argues that her sentencе “was longer than necessary to comply with
the sentencing factors outlined in
CONCLUSION
For the foregoing reasons, we AFFIRM Defendants’ convictions and sentences.
Notes
[*] The Honorable J. Ronnie Greer, United States District Judge for the Eastern District of Tennessee, sitting by designation .