United States v. Benson

957 F.3d 218

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.

No. 18-4539

No. 18-4540

No. 18-4577

United States Court of Appeals, Fourth Circuit.

Argued: January 28, 2020

Decided: April 24, 2020

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.

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.

AGEE, Circuit Judge:

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 18 U.S.C. §§ 924(c)(1) and (j) and 2. The Defendants appeal, contending that the district court erred in failing to exclude testimony concerning certain codefendant statements. Benson also argues that the court improperly permitted the Government to make prejudicial remarks during its closing argument, and incorrectly instructed the jury to ignore dismissed state charges. And Wallace contests the sufficiency of the Government’s evidence, as well as the constitutionality of his conviction.

As an initial matter, we conclude the district court did not err in permitting the challenged testimony under either Federal Rule of Evidence 801(d)(2)(A) or 804(b)(3), and that even if the court erred, it was ultimately harmless. Next, we reject Benson’s challenges because the Government’s closing argument did not prejudice his substantial rights, and the jury instruction accurately reflected the law. Finally, we affirm Wallace’s conviction because the Government presented sufficient evidence that he had advance knowledge that a codefendant would carry a gun, and the predicate offense of Hobbs Act robbery constituted a valid crime of violence for the purposes of a § 924(c)(1) conviction. We therefore affirm all three convictions.

I.

A.

On the morning of March 13, 2009, Louis Joseph, Jr. was at home in Newport News, Virginia, babysitting his girlfriend’s five-year-old son, J.W, when two men entered through the front door, pushed Joseph to the ground, and instructed J.W. to go to the bedroom. While there, J.W. heard two gunshots. After J.W. emerged to check on Joseph, he misunderstood Joseph’s direction to seek help and instead returned to the bedroom. When his mother returned home from work around 4:00 p.m., she found Joseph lying on the back patio. Shortly after she called emergency services, first responders arrived and pronounced Joseph dead. He had been shot five or six times, with lethal wounds in his stomach, lungs, ribs, and his thigh’s femoral vein.

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 18 U.S.C §§ 924(c)(1) and (j) and 2. The four had only been connected loosely prior to Joseph’s death: Wallace and Brown were both from the Hampton Roads area of Virginia and knew one another, while Benson and Kindell were both from Boston, Massachusetts and also knew each other. In turn, Wallace’s cousin had introduced him to Kindell. Brown had no prior connection with Kindell or Benson.

Following a joint trial, a jury acquitted Kindell, but convicted Benson, Brown, and Wallace. Those three Defendants now appeal the district court’s decision to permit cooperating witnesses to testify as to their codefendants’ out-of-court statements. In addition, Benson asserts error in the Government’s closing arguments and jury instructions issued in relation to certain state charges. Wallace challenges the sufficiency of the Government’s evidence with respect to, and the constitutionality of, his conviction.

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.

2.

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 on March 14 and 20, respectively, CSLI and Greyhound tickets showed the two men accelerated their departure and left for Boston at 10:20 p.m. on the evening of March 13.

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. Although, Brown told Douglas, the incident had originally been planned as "[j]ust a breaking and entering" by Brown and two others—who "had been doing homework" on Joseph—Wallace "took it over" because "he could execute it better" and brought in two men from Boston. J.A. 671–73. The Defendants then took Brown’s truck to Joseph’s residence, where the "two Boston dudes" approached the front door with Brown behind them. J.A. 674. According to Douglas, Brown stated that these men then broke down the door and went inside "[g]ung ho," after which Brown heard gunfire and ran back to the truck. J.A. 675.

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...