United States v. Carson

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ADAM CARSON, Defendant-Appellant.

No. 18-3919

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

November 26, 2019

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 19a0581n.06

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

Before: COLE, Chief Judge; MERRITT and LARSEN, Circuit Judges.

LARSEN, Circuit Judge. A jury found Adam Carson guilty of bank robbery and witness tampering. He was sentenced to 240 months' imprisonment. On appeal, Carson raises a litany of claims—ten in total—challenging his convictions and sentence. Because all lack merit, we AFFIRM.

I.

A federal grand jury charged Carson with one count of bank robbery, in violation of 18 U.S.C. § 2113(a), for robbing a Chemical Bank in Ohio. After the indictment was returned, the government learned that a key grand jury witness, Carson's ex-girlfriend Karin Deeb, had lied during her grand jury testimony by minimizing her own participation in the robbery. Deeb also later admitted that she had been under the influence of drugs during her testimony. The government, accordingly, sought and received a superseding indictment against Carson; Deeb did not testify during the second grand jury proceedings.¹

The superseding indictment again charged Carson with one count of bank robbery but added one count of witness tampering, in violation of 18 U.S.C. § 1512(b)(1). The witness tampering count reflected the government's discovery that, after the initial indictment, Carson had written Deeb a letter in an attempt to influence her upcoming trial testimony against him.

After a five-day trial, a jury convicted Carson on both counts. He was sentenced to 240 months' imprisonment on both counts to run concurrently. He appeals his convictions and sentence.

II.

Carson's appeal raises ten claims of error. We discuss the facts relevant to each claim in conjunction with our analysis thereof.

A. Constructive Amendment of the Indictment

With respect to the bank robbery charge, Carson argues that a variation between the language of the indictment and the jury instructions amounted to a constructive amendment of the indictment, in violation of the Fifth Amendment.²

"A constructive amendment results when the terms of an indictment are in effect altered by the presentation of evidence and jury instructions which so modify essential elements of the offense charged that there is a substantial likelihood that the defendant may have been convicted of an offense other than the one charged in the indictment." United States v. Pritchett, 749 F.3d 417, 428 (6th Cir. 2014) (quoting United States v. Budd, 496 F.3d 517, 521 (6th Cir. 2007)). We have held that such amendments are "considered per se prejudicial and warrant[] reversal of a conviction" because they directly infringe upon the Fifth Amendment grand jury guarantee. United States v. Ford, 872 F.2d 1231, 1235 (6th Cir. 1989). "We review de novo the legal question of whether an indictment has been constructively amended by . . . jury instructions." Pritchett, 749 F.3d at 428.

The superseding indictment charged that Carson took the property of Chemical Bank "by force, violence, and intimidation." (Emphasis added). But, over Carson's objection, the district court instructed the jury that it could convict upon proof that Carson took the money by "force and violence or by intimidation." (Emphasis added). The difference, Carson asserts, amounted to a constructive amendment of the indictment and improperly reduced the number of elements required to convict him. We disagree.

When a statute defines elements of an offense in disjunctive terms, the jury may be instructed in those terms, even if the indictment charged the elements conjunctively. United States v. McAuliffe, 490 F.3d 526, 534 (6th Cir. 2007). We have explained that phrasing indictments in the conjunctive permits "confiden[ce] that the grand jury has found probable cause for all of the alternative theories that go forward." United States v. LaPointe, 690 F.3d 434, 440 (6th Cir. 2012).But petit juries "may convict a defendant on any theory contained in the indictment. As a result, judges read jury instructions in the disjunctive." Id. Here, Carson rightly admits that "[t]he requirement of a taking by 'force and violence or intimidation' under 18 U.S.C. [§] 2113(a) is disjunctive." Appellant's Br. at 10 (emphasis in original). Therefore, no constructive amendment occurred; the superseding indictment charged Carson in the conjunctive, but the statute and the jury instructions were in the disjunctive. Carson's argument fails.

B. Career Offender Enhancement

Carson next argues that the district court erred when it calculated his sentence using a career-offender enhancement. See U.S.S.G. § 4B1.1. Specifically, he argues that his prior convictions for robbery in Ohio do not qualify as crimes of violence under the Sentencing Guidelines. See U.S.S.G. § 4B1.2(a) (2016). We review de novo whether an offense constitutes a crime of violence under the Guidelines. United States v. Cooper, 739 F.3d 873, 877 (6th Cir. 2014).

In 2006, Carson was convicted of robbery in the second degree, in violation of the "Post-Senate Bill 2"³ version of Ohio Revised Code (ORC) § 2911.02(A)(2), which states that "[n]o person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall . . . [i]nflict, attempt to inflict, or threaten to inflict physical harm on another." In 2009, he was convicted of two counts of the same offense. Carson argues that, under Gates v. United States, No. 17-3156, 2018 U.S. App. LEXIS 4075 (6th Cir. Feb. 20, 2018), and UnitedStates v. Yates, 866 F.3d 723 (6th Cir. 2017), his Ohio robbery convictions do not qualify as crimes of violence.

Our precedent squarely forecloses this argument. See United States v. Johnson, 933 F.3d 540, 546 (6th Cir. 2019). In Johnson, we declined to extend our holding in Yates, which Gates relied upon, to Carson's offense of conviction—§ 2911.02(A)(2) (Post-Senate Bill 2). Id. at 545-46. Yates held that a robbery conviction under a different statutory provision—ORC § 2911.02(A)(3) (Post-Senate Bill 2)—was not a crime of violence under the Guidelines. 866 F.3d at 728-31. But in Johnson, we concluded that Yates's logic did not apply to ORC § 2911.02(A)(2) (Post-Senate Bill 2). 933 F.3d at 545-46. We explained that a conviction under (A)(3) requires only that "force" be attempted, threatened, or deployed, whereas a conviction under (A)(2) requires that a person inflict, attempt to inflict, or threaten to inflict "physical harm." Id. Drawing a distinction between attempted, threatened, or deployed "force" and "physical harm," we held that a conviction for Ohio robbery under § 2911.02(A)(2) (Post-Senate Bill 2) qualifies as a crime of violence. Id. at 543-46. Our precedent therefore forecloses Carson's claim. The district court correctly sentenced Carson as a career offender under the Guidelines because Carson had three prior convictions for attempted robbery in violation of ORC § 2911.02(A)(2) (Post-Senate Bill 2). See Gaddis ex rel. Gaddis v. Redford Township, 364 F.3d 763, 770 (6th Cir. 2004).

C. Ineffective Assistance of Trial Counsel

Carson next claims that his trial counsel, Donald Butler, provided him with constitutionally ineffective assistance. We do not ordinarily review claims of ineffective assistance on direct appeal. United States v. Lopez-Medina, 461 F.3d 724, 737 (6th Cir. 2006). Ineffective assistance claims are more properly raised in post-conviction proceedings where the record may be developedin more detail. Id. Thus, any review on direct appeal is limited to "rare cases where the error is apparent from the existing record." Id. This is not one of those rare cases.

The alleged ineffectiveness of Carson's trial counsel is not apparent from the record. Indeed, the appellate briefing does not define with any precision just what Carson thinks Butler did wrong; nor does it make any attempt to explain how Butler's alleged errors caused him harm. Both showings are required to prevail under Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Carson argues, in conclusory terms, that Butler "ignored Appellant's requests and strategies regarding his case"; failed to object to mentions of Carson's criminal record and prior bad acts during trial; conceded, in his opening statement, that Carson took a car that he did not own; and failed to accept a plea deal that Carson had instructed him to accept. But he offers little elaboration and does not explain how any of these actions, in the context of the trial, fell below the standard of care of a reasonably prudent attorney under the circumstances. Id. at 688. And Carson makes no mention at all of how, but for these errors, the result of the trial would have been different. Id. at 694-96. We decline to entertain these poorly developed claims on direct appeal.

D. Motion to Substitute Counsel

Carson next argues that the district court violated his Sixth Amendment rights by denying his motion to substitute counsel. We disagree. While the Sixth Amendment guarantees criminal defendants the right to counsel, an "indigent defendant has no right to have a particular attorney represent him and therefore must demonstrate 'good cause' to warrant substitution of counsel." United States v. Iles, 906 F.2d 1122, 1130-31 (6th Cir. 1990). We review the district court's "good cause" determination for abuse of discretion. United States v. Marrero, 651 F.3d 453, 464 (6th Cir. 2011).

A week after Carson was indicted, the court appointed Butler to represent him. Approximately six months later, Carson moved for substitute counsel, alleging that Butler was unresponsive and had failed to file motions, issue subpoenas, and contact witnesses. The district court denied his motion, noting that Butler was "an outstanding trial [counsel] w[ith] over 40 years [of] experience." In its order, the court informed Carson...