§ 924(c) Firearms – Error is harmless where a defendant’s offense is erroneously submitted to the jury as a predicate offense under 924(c) but another predicate offense is also submitted that is so inextricably entwined with the first that no rational juror could find that the defendant carried a firearm in furtherance of one but not the other.
Double Jeopardy – Indictment is not multiplicitous where two conspiracy counts based on different statutes allege agreements to commit two separate crimes, even where both could be accomplished in the same incident.
Entrapment and Outrageous Government Conduct – Government’s conduct was not outrageous, and defendants were not entrapped, where law enforcement set up a fake safe house and had a CI suggest an armed robbery of that safehouse because the defendants did not show they were persuaded or coerced by the government beyond its mere creation of an opportunity for criminal activity.
Selective Prosecution – Evidence that a racial group was disproportionately prosecuted is not sufficient to require granting of discovery on the issue of selective prosecution unless evidence of non-prosecution of similarly situated members of another racial group is also shown.
After a jury trial, Lance Cannon and Vincent Holton were each convicted of several federal felonies, including conspiracy to commit Hobbs Act robbery, conspiracy to possess with intent to distribute cocaine, and use of a firearm during either a crime of violence or a drug trafficking crime under §924(c). These convictions arose out of a plot to rob a stash house that turned out to be fake with the help of an accomplice who turned out to be a CI. Prior to trial, Cannon and Holton filed motions to dismiss the charges on two separate grounds and motions for discovery regarding selective prosecution, all of which were denied by the district court.
On appeal, Cannon and Holton jointly argued three grounds for reversal of their convictions: first, that the government’s conduct during the investigation violated their due process rights by its outrageousness; second, that the trial court erred in refusing their request for a jury instruction on entrapment; and third, that their Hobbs Act robbery convictions should not have been submitted to the jury as predicate for their firearms charges. Singularly, Holton also argued two additional grounds for reversal: that the district court’s decision to deny their motion for discovery was error and that the indictment was multiplicitous as to the two conspiracy charges. Cannon also asserted three additional grounds singularly: that the trial court should have given an instruction on sentencing entrapment, that a juror was improperly dismissed during the trial and that his right to transcription of all proceedings was violated.
After oral argument, the Eleventh Circuit affirmed all convictions for both defendants.
After a de novo review, the Eleventh Circuit affirmed the denial of the defendants’ motion to dismiss on the basis of outrageous government conduct, noting that such a defense had never succeeded in its jurisdiction. The Government did not initially recruit Cannon or Holton, they both had opportunities to leave the conspiracy that they did not take, they volunteered to bring their own firearms without prompting, and they both helped come up with details of the plan. As a result, this was a “reverse sting operation,” where the defendants were merely presented with an opportunity to commit a crime and then took it, and challenges to reverse sting operations have been repeatedly rejected in the Eleventh Circuit.
The Court also engaged in a de novo review of the defendants’ related challenge to the trial court’s refusal to charge the jury on entrapment. As Cannon and Holton did not present evidence of “inducement” by the government that went beyond mere opportunity and rose at least to the level of “persuasion or mild coercion,” they were not entitled to such a charge. Cannon was also not entitled to a sentencing entrapment charge as the viability of sentencing entrapment as a defense at all has already been considered and rejected by the Eleventh Circuit.
For their final joint challenge, the Court agreed with Holton and Cannon that the district court erred in submitting the Hobbs Act robbery conspiracy to the jury as a predicate for their § 924(c) firearm charges. Davis requires the use of the categorical approach to determine if an offense is a crime of violence, and Hobbs Act robbery was held not to categorically qualify in Brown. The Court also held that this error was ultimately harmless, however, because the defendants’ charges for cocaine conspiracy were also valid predicates for the firearm charges.
Holton and Cannon argued that since the jury’s verdict was general, the exact reason for it could not be known, and thus the Government could not meet their burden to show beyond a reasonable doubt that the jury did not rely on the improper predicate. The Court rejected that argument on the specific facts of this case. Since the robbery involved the theft of the cocaine, the actions giving rise to the cocaine charge and to the robbery charge, respectively, were so “inextricably intertwined” that a rational juror could not have believed that the defendants possessed firearms in connection with one but not the other.
Turning to Holton’s singular claims, the Court affirmed the district court’s denial of his discovery motion after reviewing the decision for an abuse of discretion. To receive discovery on a claim of selective prosecution, a defendant must first proffer evidence that the prosecutor’s actions had both a discriminatory purpose and a discriminatory effect. Holton presented evidence that a disproportionate number of the people who were prosecuted were non-white, but he did not present any evidence showing how many similarly-situated white people were not prosecuted, which would be necessary to show a discriminatory effect. There was also no discriminatory purpose, as the defendants were only targeted by law enforcement incidentally after they were met during the course of another investigation.
Since Holton raised his claim that his indictment was multiplicitous for the first time on appeal, the Court reviewed it only for plain error, which it did not find. Holton’s two conspiracy offenses had different elements, in that they each required proof of a different type of agreement, and so the Blockburger test was satisfied. Braverman did not apply because Holton’s charges stemmed from two separate statutes. Marable did not apply because it was abrogated by later case law in all cases except those where the two charges come from the same statute.
In response to Cannon’s first singular claim, the Court found that the district court had not abused its discretion in dismissing a juror who was discovered on the second day of the trial to be the hairdresser of Holton’s wife. The dismissal was supported both by “a factual basis for implied bias and a legally relevant reason,” and Cannon made no showing of prejudice.
Finally, the Court reviewed Cannon’s claim under the Court Reporter Act de novo, as a matter of statutory interpretation. Cannon alleged a violation under this law but did not allege any specific omissions from the record. Interpreting this argument as an objection to the fact that the recorded exhibits were not transcribed for the record, the Court rejected this claim. Nothing in the Court Reporter Act requires the transcription of audio or video exhibits, and the exhibits themselves were admitted and available as part of the record.
Appeal from the Southern District of Florida
Opinion by Hull, joined by W. Pryor and Marcus
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