UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DEON’TE REED, Defendant-Appellant.
No. 20-17315
D.C. Nos. 2:17-cv-00769-KJD, 2:08-cr-00164-KJD-GWF-1
United States Court of Appeals for the Ninth Circuit
September 14, 2022
Before: Kenneth K. Lee and Daniel A. Bress, Circuit Judges, and Sidney A. Fitzwater,* District Judge. Opinion by Judge Lee
Appeal from the United States District Court for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted May 18, 2022
Pasadena, California
Filed September 14, 2022
* The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation.
SUMMARY**
The panel affirmed the district court’s denial of
Reed was cаught in a government sting operation, having agreed to rob a fake drug stash house to obtain cocaine. When the jury found Reed guilty of the
The panel held that where the jury is instructed on both a valid and an invalid predicate offense and fails to specify which predicate forms the basis for a
Applying the harmless error standard to this case, the panel held that the instructional error did not have a substantial and injurious effect on the jury because the two conspiracies were inextricably intertwined such that the jury must have used the valid drug trafficking predicate to convict Reed of the
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
COUNSEL
Cristen C. Thayer (argued) and Ellesse Henderson, Assistant Federal Public Defenders; Rene L. Valladares, Federal Public Defender; Office of the Federal Public Defender, Las Vegas, Nevada; for Defendant-Appellant.
Peter H. Walkingshaw (argued), Assistant United States Attorney; Elizabeth O. White, Appellate Chief; Christopher Chou, Acting United States Attorney; United States Attorney’s Office, Reno, Nevada; for Plaintiff-Appеllee.
LEE, Circuit Judge:
Deon’te Reed was caught in a government sting operation, having agreed to rob a fake drug stash house to obtain cocaine. Because he and his co-conspirators brought guns with them to rob the stash house, they were charged with using a firearm in relation to a crime of violence or a drug trafficking crime.
Our task is two-fold today. First, for convictions under
BACKGROUND
I. A Sting Operation Leads to Reed’s Arrest for Conspiring to Rob a Drug Stash Housе.
In September 2007, the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) opened a fake storefront in Las Vegas operating as a tattoo shop
ATF Special Agent Peter McCarthy played the role of the tattoo shop owner. Paid confidential informant Jamie Pedraza played the tattoo artist. And ATF Special Agent Richard Zayas played the role of a disgruntled drug courier.
Informant Pedraza brought Deon’te Reed to the tattoo shop. At the shop, Reed sold Agent McCarthy a pistol. Reed explained that he had more guns that he wanted to sell. Over the next weeks, the ATF decided it would approach Reed with the opportunity to rob the drug stash house. The decision was based in part on information the ATF had about Reed’s involvement in several burglaries, his movement of $200,000 worth of stolen goods through pawn shops, and a pending charge in state court for conspiracy to commit armed robbery.
Agent McCarthy then directed informant Pedraza to bring Reed to the fake tattoo shop. Pedraza told Reed that he should come to the tattoo shop if he was interested in doing a “lick,” slang for a robbery. On April 17, Agent McCarthy, along with several other undercover ATF agents, met with Reed in the back office of the tattoo shop. Reed brought with him two other individuals, Justin Spentz and Demonte Bratcher. Agent McCarthy told them that his “homey” (Agent Zayas playing the drug courier) had a “pretty good hit” (meaning opportunity for robbery) and that it would be up to them and Agent Zayas to handle the details of the robbery. While waiting for Agent Zayas to arrive, Agent McCarthy and Reed spoke about possible gun sales.
Once Agent Zayas arrived, Agent McCarthy left the room. Agent Zayas told Reed, Spentz, and Bratcher that he was a drug courier for some “Mexicanos, from the East Bay over near San Francisco.” Agent Zayas expressed frustration that he was not being paid enough to transport the drugs and that was why he wanted to rob the stash house. He explained the normal protocol for picking up the cocaine: he would receive a call providing him the location of the stash house, which was always a different location, after which he would have only a short time to drive to the house and get the cocaine. Inside the house there would be two men, Carlos and Francisco. Francisco would be armed. Agent Zayas said that in past pickups he hаd observed between 22 and 39 kilograms of cocaine stored at the stash house.
Agent Zayas asked Reed whether that was “something you guys can handle?” Reed responded, “Yeah.” Reed also asked if there would be cash inside the stash house, to which Agent Zayas answered that he had “never seen cash” and that “I’m not going to lie to you and tell you there’s a lot of money in there.” Reed then described his proposed plan for robbing the stash house. When Agent Zayas got to the stash house and knocked on the door, Reed and his mеn would emerge and “lay down” the person who answered along with Zayas. They might kick Agent Zayas to make it appear as though he was not part of the robbery, and then tape or tie up those whom they encountered. Reed continued, “then like we’ll have somebody go around to the back to get the other dude. Lay him down, too.” They would then steal the cocaine and escape. The meeting concluded with Agent Zayas stating, “And we’re going to split it even. Is that cool?” to which Reed responded, “Yeah.” Agent Zayas tоld Reed that he would come back to Las Vegas on May 12th, and they could meet then.
Agent Zayas met with Reed at the tattoo shop three days later. They again went over Reed’s plаn to rob the stash house, essentially repeating the details proposed during the April meeting. When Agent Zayas asked if Spentz and Bratcher would still be participating, Reed replied that Bratcher had broken his legs, so Reed’s brother Leonard Jackson would replace Bratcher. Reed reassured Agent Zayas that he would bring along “riders,” meaning people who could be trusted to carry out the robbery. Reed stated that they had guns. Zayas also re-confirmed that they would split the cocaine evenly, with Reed agreeing.
Two days later, Agents Zayas and McCarthy met with Reed and Jackson in a parking lot to tell them that the robbery would occur the next day at 6 pm. Agent Zayas told them that he had arranged for the use of a rental van so that the vehicle used in the robbery would not trace back to them. They all agreed to meet at the same parking lot the next day to carry out the robbery.
It was game time. Everyone met in the parking lot. Agent McCarthy testified that he and Agent Zayas “huddled” with Reed, Jackson, Spentz, and Steve Golden (who had come along with Sрentz) in the parking lot to go over the plan. In the huddle, Agent Zayas explained the robbery plan again, that there would be 22 to 39 kilograms of cocaine, and that the people in the stash house would be armed. Agent Zayas said that “we’re going to split it even.” Agent McCarthy said, “When we hit it, go back to the shop and split it.” Agent Zayas, trying to convey that the defendants could still back out, asked, “Cool?” to which Reed responded, “Yeah.”
The group then drove in their cars to the location of the rental van. When they arrived and exitеd their cars, Agent Zayas signaled for a SWAT team to move in and arrest the defendants. The government recovered a Taurus PT145 pistol in Reed’s car.
II. The Jury Convicts Reed on All Counts Using a General Verdict Form.
In June 2008, Reed, Jackson, Spentz, and Golden were charged with conspiring to interfere with commerce by robbery in violation of
A jury convicted Reed on all three counts. The jury was instructed that to convict Reed on Count Three, the
Defendant committed either Conspiracy to Obtain or Take Property by Means of Actual or Threatened Forсe or Conspiracy to Possess with Intent to Distribute Cocaine, as charged in Count One or Two of the Indictment, with all of you agreeing as to which crime defendant committed.
The verdict form filled out by the jury did not specify which underlying count (One or
Reed appealed, and this court affirmed. See United States v. Reed, 459 F. App’x 644 (9th Cir. 2011).
Reed then moved to vacate under
Reed later sought permission to file a second or successive motion to vacate under
STANDARD OF REVIEW
This court reviews a denial of a
ANALYSIS
I. The Harmless Error Standard Under Brecht Applies in Assessing the Error of Allowing the Jury to Consider Hobbs Act Conspiracy as a Predicate Offense Under § 924(c).
Section
(A) has as an element the use, attempted use, or threatened use of physical force against the person or propеrty of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
The Supreme Court held in United States v. Davis, 139 S. Ct. 2319 (2019), that the residual clause of
Though conspiracy to commit Hobbs Act robbery cannot serve as a predicate offense for a
Reed argues that when the jury found him guilty of violating
As we have noted, the government agrees with Reed that the jury should not have relied on the Hobbs Act conspiracy to convict him on the
We agree with the government and hold that an instructional error in this circumstance is prejudicial (and thus
The Supreme Court has held that instructional errors are generally subject to harmless error review. For instance, in Hedgpeth v. Pulido, 555 U.S. 57, 58 (2008) (per curiam), the Court recognized that “[a] conviсtion based on a general verdict is subject to challenge if the jury was instructed on alternative theories of guilt and may have relied on an invalid one.” But in considering whether such error was “structural” or instead subject to harmless error review, the Court traced a string of cases that established “that various forms of instructional error are not structural but instead trial errors subject to harmless-error review.” Id. at 60 (citing Neder v. United States, 527 U.S. 1 (1999); California v. Roy, 519 U.S. 2 (1996) (per curiam); Pope v. Illinois, 481 U.S. 497 (1987); Rose v. Clark, 478 U.S. 570 (1986)).
The Court added that cases in which harmless error review would not apply “are the exception and not the rule.” Id. at 61 (quoting Rose, 478 U.S. at 578). So harmless error
harmless-error analysis.” Skilling v. United States, 561 U.S. 358, 414 (2010).
Reed’s argument for applying the categorical approach misunderstands the purpose of the categorical approach and the issue in this case. The categorical approach is a method to determine whether a conviction under a particular statute qualifies as a predicate offense under the definition of another statute. See, e.g., Moncrieffe v. Holder, 569 U.S. 184, 190–93 (2013) (determining whether a state conviction qualifies as an “aggravated felony” under a federal statute). But that is not the inquiry here. Here, we already know that conspiracy to commit Hobbs Act robbery does not qualify as a predicate offense under
We join two other Circuit Courts of Appeals that have applied harmless-error review in assessing jury instruction errors involving valid and invalid predicate offenses under
Similarly, in United States v. Ali, 991 F.3d 561, 574 (4th Cir. 2021), cert. denied, 142 S. Ct. 486 (2021), the Fourth Circuit rejected the use of the categorical approach and instead used plain error2 in a case in
conspiracy to possess cocaine with intent to distribute is valid.
In sum, where the jury is instructed on both a valid and an invalid predicate offense and fails to specify which predicate forms the basis for a
II. The Instructional Error in Reed’s Case Was Harmless Because the Robbery Conspiracy and the Drug Conspiracy Were Inextricably Intertwined.
Under Brecht, an instructional error is prejudicial and habeas relief is appropriate if the error “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 623 (quoting Kotteakos, 328 U.S. at 776). If “record review leaves the conscientious judge in grave doubt about the likely effect of an error on the jury’s verdict,” then the judge should treat the error as if it affected the verdict. O’Neal v. McAninch, 513 U.S. 432, 435 (1995).
The task is to evaluate thе effect of the error on the jury, rather than merely whether the evidence points to guilt. It requires courts to consider “the record as a whole” and to “take account of what the error meant to [the jury], not singled out and standing alone, but in relation to all else that happened.” Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir. 2010) (abrogated on other grounds by Sansing v. Ryan, 41 F.4th 1039, 1050 (9th Cir. 2021)) (quoting Kotteakos, 328 U.S. at 764) (alteration in original). “The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence.” Kotteakos, 328 U.S. at 765.
In our case, the reсord as a whole suggests that the instructional error did not have a substantial and injurious effect because the conspiracies were inextricably intertwined such that the jury’s verdict on the
We join the Eleventh Circuit in using the concept of “inextricably intertwined” conspiracies to analyze whether a valid predicate offense served as the basis for a
First, the charging documents listed the same group of names for both conspiracies: Reed, Spentz, Jackson, and Golden. The jury heard no evidence of Reed or anyone else being part of a separate conspiracy to possess cocaine. The only evidence presented on a drug conspiracy was about the stash house. It thus cannot be that Reed merely wanted to rob the stash house but did not also want to possess and distribute the cocaine robbed from the stash house.
Second, the objective of each predicate offense was the same: to obtain and to sell the cocaine taken by force from the stash house. The ATF agents repeatedly established that the fruits of the robbery would bе cocaine, and they discussed and agreed with the defendants that the drugs would be split evenly among the participants. At the initial meeting, with both Reed and Spentz present, Reed agreed that it was “cool” if they split the drugs evenly. Reed again confirmed that they would split the drugs at a later meeting. And on the day of the planned robbery, Agent Zayas and Agent McCarthy both explained that they would split the cocaine stolen from the stash house among the participants. Each participant, including Reed, heard and agreed that thе object of the robbery was to possess cocaine. By using a firearm to rob the stash house, they were simultaneously using a firearm to further the drug conspiracy because to possess and distribute cocaine they first had to obtain cocaine.
Third, the evidence shows that the object of the robbery was to distribute cocaine, not for some other purpose. In the huddle before the robbery in which Reed participated, Agent Zayas explained that there would be 22 to 39 kilograms of cocaine in the stash housе. Agent Zayas testified that cocaine in this volume was far too much for personal use. Reed also provided a motive for his desire to sell the cocaine: he needed money to pay his lawyer defending him in another trial. But Reed knew the stash house would contain only drugs and no money because Agent Zayas told him so at their first meeting. The logical conclusion is that Reed understood they were robbing the stash house to obtain cocaine with the intent to sell it.
We thus hold that instructional error did not have a substantial and injurious effect on the jury. The jury would have had to base the
CONCLUSION
We AFFIRM the denial of