UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JOSEPH JAMES CAIN BENSON, a/k/a Black, a/k/a Boston, Defendant – Appellant. UNITED STATES OF AMERICA, Plaintiff – Appellee, v. BRYAN LAMAR BROWN, a/k/a Breezy, Defendant – Appellant. UNITED STATES OF AMERICA, Plaintiff – Appellee, v. MARK XAVIER WALLACE, a/k/a M-EZ, a/k/a Mark Xavier Grinage, II, a/k/a Mark Grinage, a/k/a Mark Xavier Lagrand, a/k/a Mark Xavier Wallace, II, a/k/a Louis Xavier Joseph, a/k/a Mark Wallace, a/k/a Mark Greenwhich, Defendant - Appellant.
Nos. 18-4539, 18-4540, 18-4577
United States Court of Appeals for the Fourth Circuit
April 24, 2020
PUBLISHED
Argued: January 28, 2020 Decided: April 24, 2020
Before NIEMEYER, AGEE, and RICHARDSON, Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opinion, in which Judge Niemeyer joined. Judge Richardson wrote a concurring opinion.
ARGUED: Jeffrey Michael Brandt, ROBINSON & BRANDT, PSC, Covington, Kentucky; Trey R. Kelleter, KELLETERLAW PC, Norfolk, Virginia; Andrew Michael Sacks, SACKS & SACKS, Norfolk, Virginia, for Appellants. Aidan Taft Grano, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Dana R. Cormier, DANA R. CORMIER, PLC, Staunton, Virginia, for Appellant Mark Wallace. G. Zachary Terwilliger, United States Attorney, Howard J. Zlotnick, Assistant United States Attorney, Lisa R. McKeel, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
A federal jury convicted Joseph Benson, Bryan Brown, and Mark Wallace (the “Defendants“) of aiding and abetting the use of a firearm in a crime of violence resulting in murder, in violation of
As an initial matter, we conclude the district court did not err in permitting the challenged testimony under either
I.
A.
B.
In October 2017, a federal grand jury returned a superseding indictment naming Benson, Brown, Wallace, and a fourth codefendant, Rosuan Kindell, in connection with Joseph‘s death. Each was charged with aiding and abetting the use of a firearm in relation to a crime of violence1 resulting in murder, in violation of
At the outset, we review the Government‘s trial evidence, which can be grouped into four sets: (1) the crime scene investigation; (2) cell phone records, including call records and cell-site location information (“CSLI“); (3) a New York gun trafficking investigation; and (4) statements made by the Defendants to cooperating witnesses.
1.
As an initial matter, the crime scene investigation revealed that Joseph‘s front door had been forced open. In turn, investigators recovered 0.40 caliber cartridge cases and a copper-jacketed bullet, while the autopsy revealed additional copper-jacketed bullets.
Investigators also found blood on a chair in the residence. Based on a DNA profile developed from the blood sample, the forensics lab made a potential match with Benson. As a result, the Newport News Police Department (“NNPD“) arrested Benson at his Boston residence in January 2010, after which he was held on state charges at Newport News City Jail.2 And after receiving a DNA sample from Benson following his arrest, a technician concluded that the blood taken from the chair matched Benson‘s DNA profile.
Phone records and CSLI—which were assessed by the Government‘s forensics experts—revealed the nature of the Defendants’ communications and tended to show that Wallace was responsible for communicating amongst the Defendants. Specifically, Benson‘s and Kindell‘s phones were repeatedly in touch with Wallace‘s, as was Brown‘s. However, Brown‘s phone did not reflect any communication with Benson or Kindell.
Further, these records and CSLI reflected the Defendants’ locations prior to Joseph‘s death. On March 11, 2009, two days before Joseph‘s death, Wallace and Kindell exchanged multiple calls. CSLI also revealed that Kindell and Benson traveled from Boston to Williamsburg over the course of that day. And on the morning of March 13—shortly before Joseph‘s death—Wallace called Brown three times between 9:41 and 9:56 a.m. After that, Wallace‘s phone moved from Williamsburg to Newport News and stopped movement around 10:15 a.m. at Joseph‘s home tower.3 It remained there until around 10:35 a.m., when it moved into the Hampton Roads area.
Throughout that afternoon following Joseph‘s death, Wallace repeatedly communicated with the other Defendants. Further, Wallace‘s afternoon travel included the area of the Greyhound bus station. During this same time period, Kindell repeatedly called Greyhound‘s toll-free number (in addition to calls to Benson and Wallace). And although Greyhound records showed that Kindell and Benson were originally scheduled to depart
3.
In the meantime, as part of a separate New York gun trafficking investigation, a New York City police detective listened to a wiretapped phone call around 6:15 p.m. on March 13, the day of Joseph‘s death. On the call, Brown offered to sell his New York contact two firearms: a “Smith” that was his and a “Ruger.” J.A. 372. The next month, the detective observed an undercover gun buy in which one of the gun traffickers sold an undercover officer two 0.40 caliber, semi-automatic pistols—a Ruger P94 and a black CZ. That black CZ pistol bore a stamp (“40 S&W“) indicating that the pistol fired 0.40 caliber Smith & Weston ammunition—that is, it was a “Smith.” J.A. 389. In turn, microscopic analysis confirmed that the cartridge cases and bullets recovered from the scene of Joseph‘s death were fired from those two guns.
4.
As noted previously, a number of witnesses testified about out-of-court statements that the Defendants made to them regarding Joseph‘s death.
a.
About a week after Joseph‘s death, Brown spoke with his friend, Brandon Douglas, who became a cooperating witness. According to Douglas, Brown asked him for a ride. When Douglas asked about the whereabouts of Brown‘s truck, Brown responded that “it was hot, meaning that the police was looking for it,” further explaining that his truck had been involved in a “robbery” that “didn‘t go as planned, that it went wrong.” J.A. 669–70.
b.
In turn, Wallace spoke with two law enforcement officers over the course of a 2012 investigation into Joseph‘s death. NNPD Detective Erik Kempf testified at trial that on three occasions between March and April 2012, Wallace called him to discuss his participation in the offense. On March 20, Wallace stated that he “was just a thief and that this particular incident was supposed to be a burglary.” J.A. 621. On April 11, Wallace told Detective Kempf that “he and others . . . took Bryan Brown‘s truck” to Joseph‘s house. J.A. 622.
Similarly, FBI Agent Jean Andersen testified that on April 5, Wallace told her that he “wanted to talk about the murder because it was the right thing to do.” J.A. 810. Wallace then told her that “he did not go into the house where the murder occurred but he was there out front in a car” and that “he was shot at by the people who committed the murder and that the bullet hit the metal part of the seat belt and it bounced off.” J.A. 810.
c.
Second, Brenda Rivera, Benson‘s family friend, visited him in May 2010 while he was in the Jail. During her visit, Benson told her that he was in Newport News “last year for two days . . . just two days only” “[w]ith a dude from up my way” who “knew some dudes down here.” Ex. 114A. He stated that he was “doing something [he] wasn‘t supposed to do,” Ex. 114A, but further clarified that he “didn‘t do nothing.” J.A. 765.
Third, Willie Berry testified that he knew both Kindell and Benson in Boston. A few weeks before the March 13 incident, Benson asked Berry for a gun. And while Berry, Benson, and Kindell were together in Boston, Kindell asked Berry to ride to Virginia with them to conduct a robbery; Berry declined. After their return to Boston, Benson told Berry that during the robbery, he “went inside and things got ugly and the person got shot.” J.A. 785. He also observed that there had been a child in the house.4
C.
In response, the Government argued the statements were nontestimonial and thus did not implicate the Confrontation Clause. In support, it advanced two bases for admissibility: as (1) opposing party statements pursuant to
The district court generally agreed that there was no Confrontation Clause issue for any of the witness statements. It also addressed admissibility under
Now, in addition to contesting such testimony, the Defendants appeal other asserted errors related to the Government‘s closing arguments; jury instructions; and the sufficiency of the evidence.6 This Court has jurisdiction pursuant to
II. Admission of Codefendant Statements
We begin with the Defendants’ challenges to the district court‘s admission of their codefendants’ out-of-court statements. Specifically, the Defendants challenge statements made to five witnesses: Douglas, Detective Kempf, Turner, Berry, and Rivera.
This Court reviews evidentiary decisions for an abuse of discretion but legal conclusions concerning the Federal Rules of Evidence or Constitution de novo. United States v. Landersman, 886 F.3d 393, 413 (4th Cir. 2018). Even if an evidentiary error implicates a defendant‘s constitutional rights, the Court reviews “that error for harmlessness.” United States v. Poole, 640 F.3d 114, 118 (4th Cir. 2011); see also United States v. Clarke, 2 F.3d 81, 85 (4th Cir. 1993) (noting that the Court need not resolve an alleged Bruton violation when the alleged error is harmless).
Richardson v. Marsh made clear that Bruton‘s rule was a narrow one. 481 U.S. 200 (1987). If the statement of a non-testifying codefendant incriminates another only by virtue of linkage to other evidence at trial—that is, if it incriminates “inferential[ly]” rather than “facially“—then it does not implicate Bruton. Id. at 208–09. Nonetheless, a confession may still be facially incriminatory—and thus inadmissible even with a limiting instruction—where the inferences required to link the statement to the defendant are of the type “that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial.” Gray v. Maryland, 523 U.S. 185, 196 (1998). Ultimately, when Bruton
In turn, as noted above, the district court concluded the challenged testimony (1) did not implicate Bruton and (2) was admissible either as an opposing party statement under
In sum, we conclude that none of the admitted statements presented a Bruton issue, and that they were all properly admitted under either
A. Benson and Wallace‘s Challenge to Douglas‘s Testimony
At trial, Douglas—Brown‘s friend who had given him a ride a week after Joseph‘s death—testified that Brown had complained to him that Wallace had taken over the robbery and brought in two “Boston dudes,” further describing how he had accompanied them to Joseph‘s front door. J.A. 670. Following Douglas‘s testimony, the court concluded that Brown‘s statement was nontestimonial and therefore did not implicate Bruton. Further, the court instructed the jury that the testimony could only be considered against Brown as an opposing party statement under
On appeal, Benson, one of the Defendants from Boston, argues that the testimony violated Bruton because it improperly implicated him. He also argues it constituted inadmissible hearsay. Further, both Benson and Wallace argue that Douglas‘s testimony was so prejudicial that it violated their rights to a fair trial.
We disagree. As an initial matter, Bruton does not apply here because the Confrontation Clause is only implicated in the context of testimonial statements. Dargan,
Further, we conclude the testimony was properly admitted as an opposing party statement against Brown alone. And because Douglas‘s testimony was admitted against only Brown, it was not part of the body of evidence that the jury could consider in assessing the guilt of Benson or Wallace. Cruz v. New York, 481 U.S. 186, 190 (1987).10 Thus, we can only reverse if there is some specific reason to doubt that the jury adhered to the district court‘s limiting instruction. But we must presume the jury followed the district court‘s Rule
Further, even if the admission of Douglas‘s testimony somehow amounted to error, any abuse of discretion in admitting it was harmless given the abundance of other evidence presented against Benson and Wallace. See Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (harmless error review requires consideration of “what effect [the asserted constitutional error] had upon the guilty verdict“); Brown v. United States, 411 U.S. 223, 231 (1973) (finding Bruton error harmless where the erroneously-admitted evidence was “merely cumulative of other overwhelming and largely uncontroverted evidence properly before the jury“); United States v. Basham, 561 F.3d 302, 327 (4th Cir. 2009) (“Erroneously admitted evidence is harmless if a reviewing court is able to say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” (internal quotation marks omitted)).
B. Brown‘s Challenge to Detective Kempf‘s Testimony
We turn next to Detective Kempf‘s testimony recounting his conversation with Wallace, in which Wallace stated that “he and others . . . took Bryan Brown‘s truck” to Joseph‘s home. J.A. 622. Although Brown objected to this statement, the district court concluded it was “non-testimonial” and did not present a Bruton issue. J.A. 622. Brown‘s counsel thereafter requested a limiting instruction, which the court deferred ruling on to “the end of the case if it‘s necessary.” J.A. 624. Over the course of the rest of the trial, the court did not specifically mention Detective Kempf‘s testimony. However, as noted earlier,
Although it is a close question, we agree that the statement did not present a Bruton issue because it was not facially incriminating as to Brown. To implicate Bruton, a statement cannot incriminate “inferentially“—that is, “only when linked with evidence introduced later at trial.” Richardson, 481 U.S. at 208. Although Brown asserts that the statement unambiguously named him as a participant in the crime, we agree with the Government that this characterization overstates the testimony. Wallace merely observed that “he and others . . . took Bryan Brown‘s truck” to Joseph‘s home. Left unsaid was whether Brown was physically present in the truck or at the house, or that Brown approved or even knew of Wallace‘s use of his truck.
At most, there was the possibility that the jury might infer that because Brown‘s truck was involved, so was he. But the mere possibility of Brown‘s involvement does not mean that Wallace‘s statement was facially incriminating. To have been incriminating in a Bruton sense, the statement must have obviously referred to Brown‘s direct participation in the offense. Richardson, 481 U.S. at 208. For example, this Court has concluded that a co-conspirator‘s post-arrest statement to a special agent—which generally discussed his use of his backyard shed as a contraband storage facility and noted that he had known the defendant, a next-door neighbor, his entire life—was not facially incriminating because it could not “be said to suggest that [the defendant] engaged in any crimes.” United States v. Locklear, 24 F.3d 641, 645–46 (4th Cir. 1994). Similarly, the Ninth Circuit has concluded
But even if we were to assume a Bruton error here, it would be harmless. Brown himself admitted to Douglas that he owned the truck used to transport the Defendants to Joseph‘s house; that he helped to plan the crime; and that he was present when the other participants kicked the front door in (a description corroborated by crime scene investigators). Brown‘s own statements thus subsumed Wallace‘s passing reference to his truck by supplying far more incriminating information. And the Government presented
C. Brown and Wallace‘s Challenge to Turner‘s Testimony
We turn next to the testimony of cooperating witness Turner, who was Benson‘s cellmate at the Newport News City Jail. According to Turner‘s trial testimony, Benson told him that he came down from Boston to conduct a robbery, and that Brown and Wallace “did the joint [Benson] was locked up for.” J.A. 753. Following Turner‘s testimony, the court instructed the jury that it could “consider the witness‘s testimony about what Mr. Benson said about himself” solely against Benson, and could not consider “what he said other co-defendants may or may not have done or said.” J.A. 761.
On appeal, Brown and Wallace argue that the admission of Benson‘s statements violated Bruton. We disagree, concluding that statements to a cellmate are plainly non testimonial and thus do not implicate Bruton. Dargan, 738 F.3d at 650–51 (“[S]tatements from one prisoner to another are clearly nontestimonial.” (internal quotation marks omitted)). In turn, the district court admitted the statements with a
Finally, even if the admission of this statement amounted to an evidentiary error, it would be harmless. Landersman, 886 F.3d at 413 (noting a non-constitutional evidentiary error is harmless if the “judgment was not substantially swayed by the error“). As discussed at length above, the Government presented substantial evidence of the involvement of both Brown and Wallace in the offense, including their own admissions.
D. Wallace‘s Challenge to Berry‘s Testimony
We next consider the admission of Berry‘s testimony, which described his conversations with Benson and Kindell before and after their participation in the offense. Following Berry‘s testimony, the district court stated it was “not issuing a limiting instruction on this witness” because his testimony “would clearly fall under [Rule] 804(b)(3)” and “this record is sufficiently full of independent corroboration.” J.A. 800.13 Wallace challenges the admission of this testimony, claiming it was highly prejudicial.
We reject Wallace‘s challenge. As an initial matter, we conclude there was no Confrontation Clause issue because the statements to Berry were non-testimonial. Alvarado, 816 F.3d at 252 (concluding “testimonial evidence does not include statements made to friends in an informal setting“). Thus, to the extent Wallace can argue error, it can only be an evidentiary one. But we agree with the district court that the statements made
E. Wallace‘s Challenge to the Tape of Rivera‘s Visit to the Jail
Finally, we conclude the district court did not err in admitting the tape recording of the conversation between Rivera and Benson, in which Benson admitted to being in Newport News at the time of the murder. During trial, Wallace requested a limiting instruction as to this tape. The district court declined, stating it did not believe a limiting instruction was “necessary in this case.” J.A. 767. Although the court did not specify the basis for declining to issue a limiting instruction, we agree that the tape of the conversation between Rivera and Benson constituted a statement against Benson‘s interest under
* * *
In sum, we conclude that the challenged statements were properly admitted under either
III. Benson‘s Challenge to the Government‘s Closing Argument
We disagree. Although some of the Government‘s closing came close to improperly arguing Benson‘s guilt, we conclude the Government did not engage in prosecutorial misconduct. When a defendant alleges prosecutorial misconduct, it must have “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” United States v. Caro, 597 F.3d 608, 624 (4th Cir. 2010). Specifically, “the defendant must show (1) the prosecutor‘s remarks or conduct were improper and (2) that such remarks or conduct prejudicially affected his substantial rights so as to deprive him of a fair trial.” Id. (internal quotation marks omitted). Neither requirement is met here.
We first consider whether the remarks were improper. We agree with the Government‘s view that the first comment was properly directed to arguing Brown‘s role in the offense supplying firearms. Specifically, the Government argued:
Brown, also an aider and abettor, he has a role. . . . He arms one of the suspects, at least one of them, beforehand. . . . [H]e is providing transportation, he‘s providing a gun. . . .
[Y]ou heard Brandon Douglas testify, and this was testimony against Brown, with the Court‘s limiting instruction, that he was at the scene and he armed at least one of the people. They didn‘t have guns. We know that when Benson came down here [Brown was at the scene and armed at least one of the people].
With respect to the second comment, the Government stated that Douglas‘s testimony showed that Brown was with the “Boston Boys” at the robbery, then immediately noted, “We know who the Boston Boys are[.]” J.A. 856. We observe that these two statements, coupled together, could be construed as using Douglas‘s testimony as further evidence of Benson‘s guilt. Nonetheless, we conclude they do not warrant reversal. As an initial matter, the reference to the “Boston Boys” occurred while the Government was arguing the circumstantial evidence supporting Brown‘s guilt, not Benson‘s. Specifically, the Government‘s references to the “Boston Boys” corroborated Brown‘s statements to Douglas with reference to other admissible evidence, including that two men from Boston were present. Further, it is clear, given all the other admissible evidence against him, that this comment did not prejudice Benson. United States v. Scheetz, 293 F.3d 175, 186 (4th Cir. 2002) (“Most importantly, absent the prosecutor‘s improper remark, the government‘s case against [the defendant] was overwhelming.“).
The third comment occurred while the Government was arguing that Brown was aware that the crime was an armed robbery as there would be no reason to bring others down from Boston to commit a simple burglary.15 Specifically, the Government observed how Brown knew details about the planning of the crime: “[A]s we heard again, evidence admissible against Brown, through Douglas, he told him that this was taken over. And again, we know the link between Kindell, Wallace, and we know that . . . Kindell had the link and the contacts with . . . Benson.” J.A. 858.16 Thus, the Government appropriately linked Brown‘s statements to other admissible evidence—such as the connection between Wallace, Kindell, and Benson, as well as Benson‘s request for a gun—to argue that Brown knew that the plan called for an armed robbery, not just a burglary. Given this, and that the Government mentioned the appropriate instructions, the comments were not improper.17
Finally, this Court has concluded that curative instructions eliminate prejudice from improper closing arguments even when comments are both “misleading and extensive.” United States v. Chong Lam, 677 F.3d 190, 204 n.13 (4th Cir. 2012). Here, the district court instructed the jury continuously on the evidentiary limitations, both specifically as to Douglas‘s testimony and generally, and also instructed the jury that “[s]tatements and arguments of counsel are not evidence in the case[.]” J.A. 978. Given that Benson has presented no credible arguments to rebut the presumption that the jury followed these instructions, there is no cognizable error in the Government‘s closing argument.
IV. Benson‘s Challenge to the State Charge Jury Instruction
Next, we consider Benson‘s argument that the district court improperly charged the jury to ignore the 2010 dismissal of his state charges. During trial, a former detective testified that the state charges brought against Benson in connection with the murder were dismissed. In closing, Benson‘s counsel argued that the DNA evidence with respect to the blood sample was unreliable and that the cooperating witnesses were not credible. Counsel then suggested that because the state prosecutor had previously considered substantially the same evidence, the prosecutor‘s dismissal of the charges in state court—and the dearth of new evidence developed since then—demonstrated reasonable doubt. Afterwards, the district court observed that the invocation of the dismissal “[left] an impermissible
Though constitutional claims are generally reviewed de novo, a defendant‘s argument that “he was not allowed to present a particular defense” is “better framed as an evidentiary” one, subject to an abuse of discretion standard. United States v. Malloy, 568 F.3d 166, 177 (4th Cir. 2009). Similarly, this Court reviews “the district court‘s decision to give or refuse to give a jury instruction for abuse of discretion.” United States v. Passaro, 577 F.3d 207, 221 (4th Cir. 2009). Further, the court‘s discretion to give such instructions extends throughout the trial, even after closing. United States v. Muse, 83 F.3d 672, 676–77 (4th Cir. 1996) (upholding the authority to give an “appropriate corrective instruction” even after closing when counsel argued “an extraneous consideration“).
We conclude the instruction did not constitute an abuse of discretion. In reaching this conclusion, we consider whether “the instructions accurately and fairly state the controlling law.” Passaro, 577 F.3d at 221 (internal quotation marks omitted). And here, we conclude that instruction accurately reflected the law because the state‘s decision not to prosecute did not make any fact material to the federal aiding and abetting charge more or less probable. See
Benson also argues the court‘s curative instruction prejudiced him by excluding the argument after his closing. But a curative instruction to ignore an “extraneous consideration” introduced by a defendant‘s closing argument is well “within this court‘s discretion.” Muse, 83 F.3d at 677; see also United States v. Baptiste, 596 F.3d 214, 226 (4th Cir. 2010) (observing trial judges have “broad discretion” to control closing arguments). Further, Benson was not prejudiced because the instruction did not prevent him from raising his defenses, which focused on purported evidentiary gaps, the lack of
V. Wallace‘s Challenges to His Conviction
A. Sufficiency of the Government‘s Evidence as to Wallace‘s Foreknowledge
Finally, we consider two challenges Wallace mounts as to his conviction. As an initial matter, Wallace argues his conviction must be overturned because the Government presented insufficient evidence of his foreknowledge that a codefendant would be armed. To prove aiding and abetting under
Here, the evidence of such advance knowledge need not be direct. Other circuits have concluded that where there is evidence that a defendant extensively participated in the planning of a robbery of the type that would generally necessitate the use of firearms, such evidence is sufficient to fulfill this requirement. For example, in United States v. Akiti, the Eighth Circuit affirmed the jury‘s finding that the defendant had advance knowledge that his co-conspirator in the armed robbery of a credit union would carry a gun despite a lack of direct evidence. 701 F.3d 883 (8th Cir. 2012). The government had presented evidence that the defendant “played a major role in planning the robbery“; that he “was very familiar” with the credit union that was robbed; that the plan involved robbery during business hours when multiple employees were present (thereby necessitating a firearm); and that the defendant was with his armed co-conspirator in his own apartment “immediately before the robbery.” Id. at 887. Based on all of this, the Eighth Circuit agreed that “a reasonable jury could have concluded [the defendant] knew [the co-conspirator]
Similarly, in United States v. Jordan, the Fifth Circuit observed that although evidence of aiding and abetting an armed bank robbery was circumstantial, the defendant had been observed “communicating with various co-defendants” on the morning of the robbery; “moving between the robbery vehicles“; was on a conference call with the codefendants before and “throughout the commission of the robbery“; and was arrested in a vehicle following another co-conspirator after the robbery (with multiple weapons recovered from co-conspirators’ vehicles). 945 F.3d 245, 259–61 (5th Cir. 2019). Based on this, the Fifth Circuit determined that a reasonable jury “could conclude that [the defendant] was aware that his co-defendants would be carrying weapons in the commission of the robbery[.]” Id. at 261; see also United States v. Henry, 722 F. App‘x 496, 499–500 (6th Cir. 2018) (same); United States v. Spinney, 65 F.3d 231, 237 (1st Cir. 1995) (same).
The same analysis applies here. As Wallace correctly observes, there is no direct evidence that he had advance knowledge that a codefendant would carry a gun into the robbery. Nonetheless, in light of this Court‘s deferential review of the jury‘s findings, we conclude a rational trier of fact could have concluded that this element of the crime had been proven beyond a reasonable doubt because the Government presented substantial evidence that Wallace organized his codefendants to execute an armed robbery. Specifically, Wallace was the only defendant who knew and communicated with all three of the other defendants before and after the murder (and the only link between the victim in Virginia and Benson and Kindell in Boston). Wallace communicated with Kindell
From this evidence of Wallace‘s relationships and extensive communications with the other codefendants—especially directly before and after the murder—the jury could have reasonably inferred that Wallace was the chief organizer of an armed robbery. As in Akiti, the evidence supported a reasonable jury‘s conclusion that Wallace was intimately involved with planning and executing the robbery, travelled with his armed codefendants to the robbery, and saw a car in Joseph‘s driveway (leading to the inference that a firearm would be necessary to proceed). See 701 F.3d at 887. In turn, that jury could have concluded that Wallace knew his codefendants would be armed. Thus, to the extent the evidence presented conflicting inferences,20 the jury was entitled to resolve them in favor
Finally, as Rosemond itself observed, a defendant‘s continued participation “after a gun was displayed or used by a confederate” permits the jury to “infer from his failure to object or withdraw” that he had the requisite foreknowledge. 572 U.S. at 78 n.9; see also United States v. Manso-Cepeda, 810 F.3d 846, 850 (1st Cir. 2016) (observing that the jury could have inferred from the defendant‘s failure to withdraw after becoming aware of the gun that he had advance knowledge of the gun); United States v. Newman, 755 F.3d 543, 546 (7th Cir. 2014) (observing that the defendant‘s continued cooperation with a co-conspirator after he had learned the co-conspirator was using a shotgun led to the conclusion that the defendant had advance knowledge of firearm possession). Wallace‘s post-crime communication with and transportation of the other codefendants arguably meets that standard. In sum, we conclude that a reasonable jury could have found sufficient evidence to support Wallace‘s advance knowledge.
B. Constitutionality of Wallace‘s Conviction
Finally, Wallace argues his conviction under
VI.
For the foregoing reasons, we affirm the Defendants’ convictions for aiding and abetting the use of a firearm in a crime of violence resulting in murder, in violation of
AFFIRMED.
These convictions should be affirmed, and I readily join Judge Agee‘s analysis in Sections I, II.D, II.E, III, IV, and V. But I have two modest reservations. First, although I agree “it is a close question,” Majority Op. at 18, I believe Detective Kempf‘s testimony incriminates Brown. And as incriminatory testimony, it creates a Bruton issue. Second, I doubt the district court properly applied