USA v. Toriano Johnson, et al

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14676
________________________
D.C. Docket No. 0:11-cr-60285-RSR-2
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
TORIANO JOHNSON, DARYL DAVIS,
AND HASAM WILLIAMS,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(March 15, 2016)
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Before WILLIAM PRYOR, DUBINA, Circuit Judges, and ROBRENO,∗
District Judge.
PER CURIAM:
Defendants, Toriano Johnson, Daryl Davis, and Hasam Williams, appeal
their judgments of conviction for Hobbs Act robbery charges, conspiracy charges,
and gun possession charges. Davis and Williams also appeal their sentences.
After reviewing the record and having the benefit of oral argument, we affirm all
the judgments of conviction and the sentences for Davis and Williams.
I. BACKGROUND
A. Facts
The government’s chief witness at trial was co-conspirator Nathaniel Moss,
who pleaded guilty and agreed to cooperate with the authorities in exchange for a
mandatory life sentence plus twenty years and a waiver of the death penalty. The
government’s other chief witness was FBI Agent David Magnuson, who testified
as an expert in the operation of cell phones through cell towers and cell sectors.
Agent Magnuson analyzed the cell phone records and prepared maps showing the
approximate locations of the defendants’ cell phones at relevant times during the
conspiracy.
∗ Honorable Eduardo C. Robreno, District Judge for the Eastern District of Pennsylvania,
sitting by designation.
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Moss testified that in February 2005, he, along with Williams, Davis, Bobby
Madison, Terrance Brown, and another individual, committed an armed robbery of
a Brink’s messenger at a Wachovia Bank in West Palm Beach, Florida, stealing
approximately $575,000. Moss stated that Johnson recruited him and gave him a
firearm to use in the robbery and that Johnson and Brown planned the robbery.
Moss testified that he and Williams held the messenger at gunpoint, disarmed him,
and fled with the money bag.
Moss also testified that in July 2010, the crew planned to rob a Brink’s
currency delivery at the Bank of America in Lighthouse Point, Florida. While
Madison was attempting to steal a Honda to use as a getaway car for the robbery,
police arrested him. Johnson and Brown arranged for Madison’s bond. Brown and
Moss stole two more cars, one silver Toyota Camry and one burgundy Infiniti
SUV, to use as getaway cars. Moss stated that the crew met at Davis’s home to
plan the robbery, and they met there on the morning of the attempted robbery. To
prepare for the robbery, Williams dressed as a woman, and Moss dressed as a
construction worker, wearing a wig, an orange safety vest, and a bulletproof vest
he had purchased with money provided by Johnson. Brown communicated with
the group by conference calls on disposable drop phones. The Brink’s truck never
arrived at the bank, so the group abandoned their robbery plans.
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David Dyess, a detective with the Lighthouse Police Department, testified
that later in the day of the attempted robbery at the Bank of America, a Lighthouse
Point tag reader detected the stolen Camry, in which Madison and Williams were
riding, in the vicinity of the bank. He stated that the tag reader records the vehicles
that enter and exit the city and compares the license plates against a national stolen
vehicle registry. This tag reader was directly across the street from the bank. Once
they were alerted to the stolen Camry, Dyess testified that the police pursued it but
they lost it in traffic. The police later found the Camry abandoned in the driveway
of a house. After Williams emerged from the Camry with a loaded gun, police
arrested him. The police later found a wig and dress behind the row of houses
where they apprehended Williams. While in police custody, Williams waived his
Miranda1 rights and gave a videotaped statement, which the government played for
the jury. As depicted in the videotape, Williams gave evasive and inconsistent
answers to the officer’s questions about his presence in the area of the Bank.
While investigating this attempted robbery, Agent Magnuson testified that
Moss’s cell phone records placed his phone in the areas where the Camry and
Infiniti were stolen and showed calls between Moss’s cell phone and cell phones
attributed to Williams, Madison, and Brown at the approximate times the cars were
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
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stolen. He also stated that Moss’s and Johnson’s cell phone records placed them in
the vicinity of the bank at approximately the same time that the Brink’s truck
driver made a delivery that day.
Moss also testified about a September 2010 robbery. On the morning of
September 17, the same group of individuals, with the addition of “Soldier,” who
was later identified as co-defendant Joseph K. Simmons, met at Davis’s house to
prepare for a Brink’s messenger robbery. As before, Moss dressed as a
construction worker. Madison drove the stolen Infiniti SUV. Shortly before the
Brink’s truck arrived at the Bank of America in Miramar, Florida, the police
responded to a vehicle accident across the street from the bank. Madison panicked
when he saw the police, drove away, and abandoned the Infiniti in front of a
nearby pizza establishment. He ran to a Miami-Dade Transit Authority van that
Davis had parked earlier for escape purposes and left the area in that van. A
woman who lived near the bank testified that she saw three men, one wearing an
orange safety vest, run through her backyard at approximately the same time as the
defendants fled from the bank. Agent Magnuson testified that Williams’s and
Johnson’s cell phone records placed them in the area of the bank at the pertinent
time and that there were approximately 54 calls between Davis’s cell phone and
Brown’s cell phone that day. After this failed robbery attempt, the group met at
Davis’s house and agreed to exclude Madison from any further robbery plans.
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Moss testified that in preparation for another robbery on October 1 at the
same Bank of America, he and Brown stole two more cars, a white Toyota Camry
and silver Honda Civic, to use as getaway cars. According to Moss, Brown and
Johnson organized and planned the robbery. Moss averred that Johnson gave him
a firearm to use for the robbery, conducted surveillance of the bank area, and
purchased five new drop phones for the crew to use. As usual, the group met at
Davis’s house the morning of the robbery, and Moss dressed as a construction
worker, adding a baseball cap to his black wig, orange safety vest, and bulletproof
vest. Soldier wore a green University of Miami hooded sweatshirt.
The Brink’s truck arrived minutes before the noon hour, and Moss stated
that everyone was in position. A nearby IHOP (International House of Pancakes)
restaurant security camera captured images of a black Chevy Traverse, driven by
Johnson, a white Toyota Camry with Moss, Soldier and one other man in it, and
the Brink’s truck pulling into the bank’s parking lot shortly before 12:00 p.m.
Agent Magnuson testified that cell phone records placed Moss’s and Brown’s cell
phones in the area where the cars were stolen at the approximate time that the cars
were stolen. He also stated that Williams’s cell phone records showed that
between 11:32 a.m. and 11:45 a.m., his cell phone was moving from Davis’s
residence toward the Bank of America and was in the vicinity of the bank between
11:49 a.m. and 12:26 p.m. Agent Magnuson further testified that Brown’s cell
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phone records indicated that Brown was in the vicinity of the bank at the pertinent
times and that numerous calls were made from Brown’s cell phone to Davis’s and
Williams’s cell phone numbers between 11:57 a.m. and 12:17 p.m. Likewise, he
testified that Johnson’s and Davis’s cell phone records indicated that they were in
the vicinity of the bank at the relevant times.
On October 1, after the Brink’s messenger, Alejandro Arencibia, exited the
truck with the money bag, Moss and Soldier approached him. Moss held
Arencibia at gunpoint while Soldier grabbed the money bag and ran toward a white
Toyota Camry that departed immediately after Soldier entered the vehicle. The
Brink’s driver fired a round at Moss, who returned fire. Unable to disarm
Arencibia, Moss killed him with a single gunshot to his head. Moss fled to the
getaway car, but it was gone. He ran to the other getaway car, but it too was gone.
After hiding in the bushes of an abandoned house, Moss was ultimately
apprehended by the police. When the police questioned him upon his arrest, Moss
denied any knowledge of a robbery. A woman who lived near the bank testified
that she heard two shots from the direction of the bank at approximately 12:00 p.m.
and saw two men, one wearing a t-shirt and shorts and one wearing a hooded
sweatshirt, jump the fence and run across her backyard. Another witness testified
that he saw two black males, one in a hooded UM sweatshirt and one in a black
shirt, run past at the relevant time.
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Police Officer Gerard Starkey investigated the October 1 bank robbery and
murder. After reviewing surveillance video and Moss’s cell phone records, Officer
Starkey considered several of the defendants as suspects. Officer Starkey
interviewed Moss for the first time on June 8, 2011, and at that time, Moss had not
entered a plea and was facing a possible death sentence for the murder of
Arencibia. During this interview, Moss discussed his involvement in the October
robbery but did not disclose any names of his cohorts. At the end of the interview,
Officer Starkey showed Moss photographs of Davis, Johnson, and Brown, but
Moss did not indicate he knew them. Several months later, Officer Starkey
interviewed Moss again and, this time, Moss disclosed the names of his cohorts
and the role each played in the robbery. Moss also told Officer Starkey about the
prior robbery in 2006 and the robbery attempts in July and September 2010. Soon
thereafter, Moss entered a guilty plea and agreed to cooperate with the government
in exchange for a mandatory life sentence plus twenty years and a waiver of the
death penalty. The police arrested Johnson, Davis, Williams, and Brown that same
day, and later apprehended Simmons.
B. Procedural History
A Florida grand jury returned a second superseding indictment charging that,
between May 2010 and October 1, 2010, Johnson, Davis, Williams and co-
defendants Brown, Madison, and Simmons, conspired to commit Hobbs Act
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robbery of employees of Brink’s Incorporated, in violation of 18 U.S.C. § 1951(a)
(Count 1). The indictment further charged that defendants attempted to commit
Hobbs Act robbery of Brink’s security guards, in violation of 18 U.S.C. §§ 1951(a)
and 2, and used and carried a firearm during and in relation to that crime, in
violation of 18 U.S.C. §§ 924(c)(1)(A) and 2, on July 26, 2010, at a Bank of
America in Lighthouse Point, Florida (Counts 2 and 3), and on September 17,
2010, at a Bank of America in Miramar, Florida (Counts 4 and 5). The indictment
further charged that on October 1, 2010, defendants committed Hobbs Act robbery
of Brink’s security guards at a Bank of America in Miramar, Florida (Count 6),
used and carried a firearm during and in relation to that crime (Count 7), and
carried and used a firearm in furtherance of that crime of violence, resulting in the
death of a Brink’s security guard, in violation of 18 U.S.C. §§ 924(c)(1)(A),
924(j)(1), and 2 (Count 8). Count 9 charged that on July 26, 2010, Williams was a
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
Johnson, Davis, Williams, Brown, and Simmons were tried jointly. The jury
acquitted Simmons on all counts and found Brown guilty on Count 1, but failed to
reach verdicts on the remaining counts. The government retried Brown, and the
jury convicted him on Counts 2, 3, 4, 6, and 8, and acquitted him on Count 5. The
district court sentenced Brown to 34 years’ imprisonment. The jury found Johnson
guilty on Count 1 and failed to reach a verdict on the remaining counts. Pursuant
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to a written plea agreement, Johnson entered an Alford2 plea on Count 2. The
district court sentenced Johnson to 20 years’ imprisonment as to Count 1 and 10
years’ imprisonment as to Count 2, to run consecutively, for a total sentence of 30
years’ imprisonment. The jury found Davis guilty as to Count 1 and failed to reach
a verdict as to the remaining counts. The district court sentenced Davis to 20
years’ imprisonment. The jury found Williams guilty on Counts 1, 2, 3, and 9,
acquitted him of Counts 4 and 5, and failed to reach a verdict on the remaining
charges. The district court sentenced Williams to 18 years on Counts 1 and 2, to
be served concurrently; five years as to Count 3, to be served consecutively; and
five years as to Count 9, to be served concurrently.
II. ISSUES
1. Whether sufficient evidence supports Johnson’s conviction for
conspiracy to commit Hobbs Act robbery.
2. Whether the district court abused its discretion by denying Williams’s
motion to sever his trial.
3. Whether the district court impermissibly limited defendants’ cross-
examination of a cooperating co-conspirator.
2 North Carolina v. Alford, 400 U.S. 25, 37–38, 91 S. Ct. 160, 167–68 (1970) (holding
that the trial court did not err by allowing defendant to knowingly and voluntarily enter a plea to
a lesser offense to avoid a possible death sentence even though the evidence of guilt as to the
murder charge was strong).
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4. Whether the district court abused its discretion in ruling on various
evidentiary challenges.
5. Whether the district court erred in admitting cell phone and cell tower
records at trial.
6. Whether the district court’s instruction to the jury during its deliberation
was unduly coercive and whether the district court erred by giving the jury, per its
request, a new verdict form as to Williams.
7. Whether the district court abused its discretion by denying Davis’s
motion for new trial based on newly discovered evidence.
8. Whether Davis’s sentence is reasonable.
9. Whether Williams’s sentence violates the Sixth Amendment.
III. STANDARDS OF REVIEW
This court reviews “the sufficiency of evidence to support a conviction de
novo, viewing the evidence in the light most favorable to the government and
drawing all reasonable inferences and credibility choices in favor of the jury’s
verdict.” United States v. Taylor, 480 F.3d 1025, 1026 (11th Cir. 2007).
We review for abuse of discretion a district court’s ruling on a severance
motion, its ruling on a motion for new trial, its limitation on the scope of cross-
examination, and its evidentiary rulings. See United States v. Kennard, 472 F.3d
851, 859 (11th Cir. 2006) (severance motion); United States v. Sweat, 555 F.3d
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1364, 1367 (11th Cir. 2009) (new trial motion); United States v. Maxwell, 579 F.3d
1282, 1295 (11th Cir. 2009) (limitation of cross-examination); United States v.
Edouard, 485 F.3d 1324, 1343 (11th Cir. 2007) (evidentiary rulings).
However, where a defendant fails to preserve a challenge to an evidentiary
ruling, this court’s review is for plain error. Id. Under the plain error review, there
must be (1) an error, (2) that is plain, and (3) that affects the defendant’s
substantial rights. United States v. Shelton, 400 F.3d 1325, 1328–29 (11th Cir.
2005) (internal quotation marks omitted). If the first three conditions are met, this
court may correct the error if it “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. at 1329 (internal quotation marks omitted).
When reviewing sentencing guideline issues, this court reviews “purely legal
questions de novo, a district court’s factual findings for clear error, and, in most
cases, a district court’s application of the guidelines to the facts with due
deference.” United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010)
(internal quotation marks omitted). “For a finding to be clearly erroneous, this
Court must be left with a definite and firm conviction that a mistake has been
committed.” Id. (internal quotation marks omitted). This court reviews the final
sentence imposed by the district court for reasonableness and reviews the
reasonableness of the sentence for an abuse of discretion. United States v. Irey,
612 F.3d 1160, 1188–90 (11th Cir. 2010) (en banc).
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IV. DISCUSSION
A. Guilt Stage Issues
1. Sufficiency of the evidence to support Johnson’s conspiracy conviction
Johnson claims that the government did not present sufficient evidence for
the jury to find beyond a reasonable doubt that he conspired to commit Hobbs Act
robbery because the testimony of co-defendant Moss was not credible and
unreliable. However, his attack on Moss’s credibility is futile because “the jury
has exclusive province over [the credibility] determination and the court of appeals
may not revisit this question.” United States v. Chastain, 198 F.3d 1338, 1351
(11th Cir. 1999). Moss’s testimony was corroborated by other evidence, such as
cell phone and cell tower records that placed Johnson’s cell phone in the vicinity of
the banks at the time of the Brink’s deliveries and security camera footage that
matched Moss’s description of Johnson’s vehicle at each of the robberies. In
addition, Moss was subjected to extensive cross-examination by each of the
defendants’ attorneys, and the district court cautioned the jury about its
consideration of testimony by a witness who has pleaded guilty and hopes to gain
favorable sentencing treatment from his cooperation with the authorities.
Accordingly, Johnson is not entitled to relief on this claim.
2. Williams’s motion to sever his trial
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Williams argues that because the district court erred in denying his motion
for severance, the jury heard prejudicial evidence regarding unrelated nefarious
activities of his co-defendants. He contends that his case requires severance
because (1) it involved “inculpatory evidence [that was] admitted against one
Defendant that [wa]s not admissible against the other,” and (2) it contained “a
cumulative and prejudicial ‘spill over’ effect [that] prevent[ed] the jury from
sifting through the evidence to make an individualized determination as to each
Defendant.” United States v. Chavez, 584 F.3d 1354, 1360–61 (11th Cir. 2009)
(citations omitted).
Williams cannot demonstrate that the district court abused its discretion.
Usually, defendants who are indicted together are tried together except where a
defendant shows that a joint trial would actually prejudice him and that “a
severance is the only proper remedy for that prejudice.” United States v. Lopez,
649 F.3d 1222, 1234 (11th Cir. 2011). Because a district court’s limiting
instructions usually cure any prejudice resulting from a joint trial, severance will
be granted “only if there is a serious risk that a joint trial would either compromise
a specific trial right of one of the defendants or prevent the jury from making a
reliable judgment about guilt or innocence.” Id. at 1234–35 (internal quotation
marks omitted). Here, the district court issued a curative instruction at the
beginning and the end of the government’s presentation of evidence against co-
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defendant Brown—that he participated in robberies in 2001 and 2003—for the jury
to consider the evidence only as to defendant Brown, and the district court
instructed the jury that it must consider the evidence against each defendant
separately and individually. Moreover, the parties’ stipulation, which was read to
the jury, stated that Williams was not a participant in the earlier robberies. In light
of these instructions and the stipulation, Williams cannot show that the jury was
prevented from making a reliable judgment about his guilt.
3. Defendants’ challenge to the cross-examination of Moss
Defendants argue that the district court impermissibly limited their cross-
examination of Moss and violated their Sixth Amendment confrontation rights.
The crux of their argument centers on Moss’s motive to lie. They assert that
Moss’s attorney allegedly provided him information about the government’s
investigation of the robberies prior to Moss’s first debriefing in June 2011. They
claim that Moss used this information to create a story implicating them in the
robberies. They alleged that because Moss was the cornerstone of the
government’s case against them and they were not able to thoroughly cross-
examine him, this court should reverse their convictions.
At the close of the government’s case, the district court denied defendants’
motions for mistrial and observed that “there was more than fair cross-
examination” of Moss on his motive to lie. (R. Vol. 1010 p. 288.). A defendant
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“is entitled only to an opportunity for effective cross-examination, not cross-
examination that is effective in whatever way, or to whatever extent, the defendant
might wish.” Maxwell, 579 F.3d at 1296 (quoting United States v. Baptista-
Rodriguez, 17 F.3d 1354, 1366 (11th Cir. 1994)). The record demonstrates that
defendants’ counsel thoroughly cross-examined Moss and exposed sufficient facts
for the jury to draw inferences regarding his motive to lie. Moreover, counsel
impeached Moss with his testimony from his change of plea hearing and attacked
his credibility in their closing arguments. Based on the entire context of the trial,
including the defense theory, Moss’s testimony, the cross-examination of Moss,
and the district court’s curative instructions, the district court did not err.
4. Evidentiary rulings
Defendants raise numerous evidentiary challenges, asserting that the district
court abused its discretion: (1) by not granting Johnson’s motion for mistrial
because Moss’s unsolicited remark about knowing Johnson since they were in
prison was unduly prejudicial; (2) by denying Davis a fair trial because it allowed
Moss to testify that he would not lie because of his Muslim religion; (3) by
allowing the government to question Agent Starkey regarding statements made by
Moss during his first debriefing and his explanation of how Johnson became a
person of interest; and (4) by allowing the prosecutor to become a witness during
his questioning of Lisa McCarty. A review of the record demonstrates that none of
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these challenges merit relief. Defendants cannot demonstrate that the district court
abused its discretion or committed plain error in making these evidentiary rulings.
See, e. g., United States v. Emmanuel, 565 F.3d 1324, 1334 (11th Cir. 2009)
(“Where the comment is brief, unelicited, and unresponsive, adding nothing to the
government’s case, the denial of a mistrial is proper.”); United States v. Silvestri,
409 F.3d 1311, 1327–28 (11th Cir. 2005) (stating that when a defendant invites an
error, the court is precluded “from invoking the plain error rule and reversing”);
Shelton, 400 F.3d at 1328–29 (where a defendant fails to preserve a challenge to an
evidentiary ruling, this court’s review is for plain error); United States v. Prieto,
232 F.3d 816, 820–22 (11th Cir. 2000) (stating “that statements made after an
arrest are not automatically and necessarily contaminated by a motive to fabricate”
and can be admissible as prior consistent statements under Federal Rule of
Evidence 801(d)(1)(B)).
5. Johnson and Williams’s challenge to the admission of cell phone records
For the first time on appeal, Johnson and Williams challenge the district
court’s admission of the cell phone records and cell tower records as a violation of
their Fourth Amendment rights because the government obtained these records
without a warrant based on probable cause. To succeed on their claim, Johnson
and Williams must demonstrate that the district court plainly erred by allowing
these records into evidence. See United States v. Young, 350 F.3d 1302, 1305
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(11th Cir. 2003) (appellate review is for plain error when party fails to assert
theory in the district court). Their argument is foreclosed by our recent decision in
United States v. Davis, 785 F.3d 498 (11th Cir. 2015) (en banc), cert. denied, ___
U.S. ___, 136 S. Ct. 479 (2015). We concluded in Davis that there was no search
within the meaning of the Fourth Amendment and that “the government’s
obtaining a § 2703(d) court order for the production of [defendant’s telephone
company’s] business records did not violate the Fourth Amendment.” Id. at 511.
Hence, this argument is meritless.
6. Williams and Davis’s challenge to the final jury instruction and verdict
form
Williams and Davis argue that the district court’s final instruction to the jury
during its deliberation was unduly coercive, and Williams further challenges the
manner in which the district court provided the jury, upon its request, with a new
verdict form. They contend that the final instruction was coercive in light of the
district court’s note instructing the jury to continue its deliberations when they had
deliberated for two days, and the district court’s issuance of an Allen3 charge
during the same period of deliberations. After a recess, the jury reconvened and
3 See Allen v. United States, 164 U.S. 492, 17 S. Ct. 154 (1896) (approving an instruction
that admonishes each juror to reexamine his or her own view of the evidence in light of the
arguments of the other jurors and instructing the jury to return to its deliberations in the hopes of
reaching a verdict); see also 11th Cir. Pattern Jury Instructions (Criminal Cases), Trial
Instruction 6 (adopting the text of the Allen charge).
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sent a note informing the district court that they were unable to reach a unanimous
decision as to four of the defendants. The district court responded with an
instruction stating, in part:
I wish to advise you that you do not have to reach a unanimous
agreement on all of the charges before returning a verdict on some of
them. Therefore, if you have reached unanimous agreement on any of
the charges against any of the defendants, we ask that you return your
unanimous verdict with respect to each of those charges on which you
have reached unanimous agreement.
(R. Vol. 954, p. 3.)
Later, the jury requested a new verdict form for Williams, and the district
court provided it, but did not inform Williams or his counsel until approximately
30 minutes afterward. The jury soon announced it had reached its verdicts, and
when court convened, Williams’s counsel objected to the new verdict form and
moved for a mistrial. The district court denied the motion, stating that jurors make
mistakes on forms and emphasizing that no verdict is final until the jury has signed
it. (R. Vol. 954, p. 11–12.) The district court filed the discarded verdict form
under seal in light of Williams’s objections. The jury verdicts were read in open
court, and the district court polled the jury on its verdicts as to all defendants. (Id.
at 14–19.) Both Davis and Williams filed motions for new trial which the district
court denied.
“Generally, district courts have broad discretion in formulating jury
instructions provided that the charge as a whole accurately reflects the law and the
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facts.” United States v. Williams, 526 F.3d 1312, 1320 (11th Cir. 2008) (quoting
United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000)). Further, in
assessing whether a charge was coercive, “we consider the language of the charge
and the totality of the circumstances under which it was delivered.” United States
v. Woodard, 531 F.3d 1352, 1364 (11th Cir. 2008). The language of the
instruction here did not suggest that the jury had to reach a verdict; rather, by the
use of the past tense, it informed the jury to report decisions it had previously
made. Additionally, viewing the totality of the circumstances, given the short
amount of time it took for the jury to return its partial verdicts after the district
court gave the instruction, it is apparent that the jury complied with the instructions
and reported verdicts it had previously reached against each of the defendants.
There was no error.
Moreover, for the first time on appeal, Williams asserts that the district court
violated his Double Jeopardy rights by providing the jury with a new verdict form,
and that the district court denied him counsel at a critical stage of the trial when it
provided a new verdict form to the jury without consulting him or his counsel.
Because this is the first time Williams has raised this issue, he must satisfy the
plain error standard. He cannot do so. First, the same empaneled jury deliberated
and returned a single verdict form finding him guilty of Counts 1, 2, 3, and 9, and
not guilty as to Counts 4 and 5. Williams does not enlighten the court as to how
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this was a constitutional violation. His mere assertion does not show any error,
much less plain error, by the district court in providing a new verdict form to the
jury.
Second, Williams cannot demonstrate error by the district court when it
provided the new verdict form to the jury without his counsel present because he
cannot show that this was a critical stage in his trial proceedings. The Supreme
Court has held that once a prosecution commences, an accused is entitled to be
represented by counsel at all “critical stages” of the prosecution, including pretrial
proceedings at which he “require[s] aid in coping with legal problems or assistance
in meeting his adversary.” United States v. Ash, 413 U.S. 300, 313–14, 93 S. Ct.
2568, 2575 (1973). The purpose of the critical-stage inquiry is not to determine the
point at which a criminal prosecution begins and the protections of the Sixth
Amendment first take effect, but to identify specific proceedings thereafter for
which the accused is entitled to the assistance of counsel and which cannot,
without a valid waiver, be conducted in counsel’s absence. Moore v. Illinois, 434
U.S. 220, 224–25, 98 S. Ct. 458, 462–63 (1977); United States v. Wade, 388 U.S.
218, 226–27, 87 S. Ct. 1926, 1932 (1967). The critical-stage test thus asks whether
a proceeding threatens “potential substantial prejudice” to the defendant’s rights
that counsel’s assistance could help avoid. Wade, 388 U.S. at 227, 87 S. Ct. at
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1932. We conclude that there was nothing in this ministerial act that required legal
aid for Williams or threatened potential substantial prejudice to him.
7. Davis’s motion for new trial
During trial, Davis sought an order compelling his cell phone
carrier/provider, Sprint, to produce his cell phone records for the cell phone
number beginning with area code 305 in order to assist him with an alibi. The
government had already received cell phone records from one of his cell phones
that began with area code 404. Sprint complied by producing Davis’s billing
records but claimed that it no longer had the historic cell tower data and cell phone
location for the area code 305 phone. Co-defendant Brown moved the court for
production of cell site data and cell phone location information from the National
Security Agency (“NSA”) based upon widespread media reports disseminated
prior to and during trial that the NSA was routinely collecting and storing this
information, and Davis adopted this request. The government responded that the
NSA did not collect such information. Brown withdrew his request, and the
district court denied the motion as moot.
After trial concluded, Davis moved the district court to reconsider its denial
of his motion for new trial based on newly discovered evidence that the NSA had
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conducted a test project in 2010 to collect data on cell phone locations.4 After the
government filed responses in camera and under seal, the district court denied the
motion as moot, finding that the NSA did not possess the information Davis
sought. Davis asserts that he is entitled to a new trial or alternatively a remand to
the district court for discovery and an evidentiary hearing concerning the nature
and extent of the cell site location data collected by the NSA during the relevant
time period.
Davis cannot prevail because he cannot demonstrate that any of the NSA’s
alleged collected cell site location data included his 305 area code cell phone, and
that if it did, the information would be material or would produce a different result.
See United States v. Sjeklocha, 843 F.2d 485, 487 (11th Cir. 1988) (setting forth
elements party must satisfy to be entitled to a new trial based on newly discovered
evidence). Davis bases his argument on pure speculation that the NSA might have
collected this specific information and that such information might have assisted
him with establishing an alibi. Furthermore, assuming arguendo that the NSA had
collected this specific information, it would not undermine our confidence in the
jury’s verdict in light of the evidence placing Davis’s other cell phone in the
4 Davis’s motion did not technically seek reconsideration of any of the issues he raised in
his initial timely filed motion for new trial. This motion, in effect, was a second motion for new
trial that was arguably untimely under Federal Rule of Criminal Procedure 33(b); however, any
untimeliness challenge was forfeited by the government. See Eberhart v. United States, 546 U.S.
12, 18–19, 126 S. Ct. 403, 406–07 (2005) (finding that because the government failed to raise a
defense of untimeliness it forfeited that defense).
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vicinity of the October robbery and the prior attempted robberies at all relevant
times.
B. Sentencing Issues
1. Davis’s sentence
Davis contends that his sentence of 20 years’ imprisonment is procedurally
unreasonable because the jury was unable to return a unanimous verdict on the
substantive Hobbs Act counts and firearms counts and, thus, the guilty verdict on
Count 1 leaves unanswered in what specific aspects of the charged conspiracy he
was involved. Thus, Davis argues that the district court erred by applying the
cross-referencing provisions in U.S.S.G. § 2B3.1(c). He also asserts that his
sentence is substantively unreasonable because the district court imposed a
sentence that was greater than necessary to reflect the statutory sentencing factors
in 18 U.S.C. § 3553.
We conclude from the record that Davis’s sentence is reasonable. The
district court correctly applied the guidelines, and it articulated in detail the § 3553
factors that it considered in choosing the guideline sentence. Davis fails to show
any abuse of discretion in the district court’s imposition of the 20-year sentence.
Accordingly, we affirm Davis’s sentence.
2. Williams’s sentence
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Williams asserts that his sentence violates the Sixth Amendment because the
district court, not the jury, made the finding that he participated in the October 1
robbery and was culpable for the death of the Brink’s guard. His argument is
foreclosed by binding precedent. See United States v. Smith, 741 F.3d 1211, 1226–
27 (11th Cir. 2013) (holding that sentencing enhancements based on judicial fact-
finding, even when based on acquitted conduct, do not violate the Sixth
Amendment); United States v. Faust, 456 F.3d 1342, 1347–48 (11th Cir. 2006)
(same). Accordingly, we affirm Williams’s sentence of 23 years’ imprisonment.
V. CONCLUSION
We affirm the judgments of conviction for defendants Johnson, Davis, and
Williams. We conclude that Davis’s and Williams’s sentences are procedurally
and substantively reasonable, and we affirm these sentences as well.
AFFIRMED.
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