United States v. Grace

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. QUANTRELL GRACE, Defendant-Appellant.

No. 16-12909

No. 16-17052

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

September 27, 2017

[DO NOT PUBLISH]

Non-Argument Calendar

D.C. Docket No. 1:15-cr-20789-JAL-1

Appeals from the United States District Court for the Southern District of Florida

Before ED CARNES, Chief Judge, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:

A jury convicted Quantrell Grace of Hobbs Act robbery and brandishing a firearm in furtherance of a crime of violence. As a result of those convictions, the district court, among other things, sentenced him to a lengthy prison term and ordered him to pay restitution. In these consolidated appeals, he challenges both his convictions and the district court's calculation of restitution.

I.

Because Grace was convicted of two of the crimes charged in the indictment, we recite the facts of his crimes in the light most favorable to the government and draw all reasonable inferences in favor of the jury's verdict. See United States v. Martin, 803 F.3d 581, 585 (11th Cir. 2015). We take the procedural history of this case from the district court record.

A.

On June 21, 2015, Geremias Garcia was working in Opa-locka, Florida, as a delivery driver for Papa Johns. Sometime before 10:00 pm, someone placed an order with Papa Johns, asking that a pizza be delivered to the Palm Lake Apartments — a home for the elderly. Garcia was tasked with delivering the order.

Upon nearing the apartment building, Garcia (who was new to the area) called the phone number on the pizza receipt — which ended in 5318 — to ask for directions. A man answered the phone and began to direct Garcia to the correct address. As they spoke, Garcia continued to drive. Eventually, he saw the man on the phone standing on the fourth floor of a building. The man waved to indicate that he was the person Garcia was speaking to. Garcia testified at trial that the lighting conditions at this time were very good.

Garcia asked the man to come down to collect his pizza, but the man said to come up to deliver it. Garcia parked his car and, leaving his phone in the vehicle, went up a staircase to meet the man. When he opened the door to enter the fourth floor of the building, he saw the man who had waved to him. There was nothing covering the man's face and the lighting was very good. The man had his right hand behind his back. Another person was with him.

The man Garcia had seen wave approached Garcia and put a pistol to his forehead. The man's companion said to kill Garcia. The man grabbed Garcia by the back of the neck and forced him to the ground, saying "stay down, stay down, stay down." The man took all of Garcia's belongings, saying he would not kill Garcia if Garcia gave him all "the money." The man made off with the money Garcia was carrying, his license, and his wallet. Garcia testified that he was carrying approximately $700, which included around $200 in his wallet, $70 to $80 that belonged to Papa Johns, and $420 to $430 dollars that he had earned working at Papa Johns over the past three days. With the gun still pressed against Garcia's head, the man told him to stay where he was. Garcia remained face-down on the ground until he heard the man run down the stairs.

Garcia then returned to his car and called the police. Detective Darell Rodriguez responded to the call. Garcia described what had happened and provided Detective Rodriguez with the phone number from the pizza receipt. Detective Rodriguez, in turn, provided that number to the detectives in the police department responsible for tracking phone numbers. He was soon advised that the phone was being tracked to an address on West Golf Drive in Miami. Upon researching the address, the detective obtained several names, including Grace's. And he noted that Grace matched Garcia's description of the assailant.

At trial, a representative from Metro PCS/T-Mobile (a cell phone company) testified that the phone number Garcia called (from the pizza receipt) was registered to Trello Santana. But he explained that, because customers pay for Metro PCS phone usage up front, the company does not verify the information they provide and "[a]n individual can use any name they want to." The representative explained that the physical address connected to the cell phone account was the West Golf Drive address. Only one phone was listed on the account. The phone records indicated that, around 10:40 pm on June 21, a call was placed from Garcia's cell phone to that number.

Law enforcement officers from the Miami-Dade Police Department conducted surveillance at the West Golf Drive address. At some point, detectives monitoring the house and cell phone radioed other detectives nearby to indicate that a subject carrying the cell phone was leaving the residence. Those nearby detectives moved in and found "the subject" was Grace, the defendant, and he had the phone. Grace was arrested. He did not have a firearm on his person at that time and the pistol used in the robbery has not been recovered.

After Grace had been detained, Detective Rodriguez prepared a photographic lineup to show Garcia. He used Grace's driver's license photo as well as five other "filler" photographs selected based on Garcia's description of his assailant. Detective Rodriguez traveled to Garcia's house to show him the lineup. He testified that, before showing the photos to Garcia, he gave the standard instructions related to photographic lineups and asked him to sign a document indicating that he had received the instructions. Those instructions included admonitions that: (1) he was not obligated to pick anyone out; (2) that the person who committed the crime might not be in the lineup; and (3) to disregard any markings he might see on the photographs. Detective Rodriguez then, after shuffling the six photographs so he did not know what order they would appear in, showed them to Garcia one-by-one to see if Garcia recognized any of the persons depicted from the robbery.

Garcia testified that Detective Rodriguez did not say anything to him as he was looking at the photographs. Garcia told Detective Rodriguez that the person depicted in the third photograph was his assailant; the third photo was the picture of Grace. Garcia testified that he was one hundred percent sure that the person in the photo was the man who attacked him, and Detective Rodriguez testified that Garcia seemed "very certain" of the identification. Detective Rodriguez had him sign the third photograph after he had reviewed all of the pictures. Garcia added that Detective Rodriguez did not say anything to him after he identified the third photograph and that the officer's demeanor did not change as a result of the identification.

B.

Grace was indicted by a federal grand jury for conspiracy to commit a Hobbs Act robbery, substantive Hobbs Act robbery, and brandishing a firearm in furtherance of a crime of violence. His case was tried before a jury.

During his testimony, Garcia again identified Grace as the man who attacked him. He testified that the person who assaulted him was approximately five-feet-seven-inches tall, was African American, had black hair, and weighed around 160 to 170 pounds. He told the jury that he has very good eyesight and does not wear eyeglasses or contact lens. Through cross-examination, defense counsel highlighted a number of inconsistencies between Garcia's testimony and what he said on earlier occasions.

Detective Rodriguez testified that, after reviewing records of the phone calls placed from jail, he noticed that some of the numbers Grace had called from jail matched some of the numbers that had been dialed from the cell phone used to lure Garcia to the scene of the robbery. On cross-examination, Detective Rodriguez admitted that none of the numbers that were common to the two call logs were dialed from the cell phone on the night of the robbery. He also acknowledged that he had never played any recordings of Grace's jail calls for Garcia to see if he recognized Grace's voice.

A significant portion of the cross-examination of Detective Rodriguez focused on the photographic lineup. When asked why he did not record the lineup, Detective Rodriguez said he was not required to do so. He also testified that it was not the department's normal practice to record identifications, although he had recorded some identifications in the past. He admitted that Grace was wearing a black shirt in the photo used in the lineup and Garcia had said that his assailant had been wearing a black shirt during the robbery. Detective Rodriguez admitted that he did not tell Garcia: that it was just as important to clear the innocent as to identify the perpetrators of a crime; not to look to the detective for guidance; to take as much time as he needed; that his exact words about the identification would be noted; or that the police would continue to investigate even if he couldn't make an identification. Detective Rodriguez also acknowledged that he could see the photos as they came up and that a lineup administrator can sometimes influence the victim if he knows which photograph is the suspect's, but he explained that he stood behind Garcia so his reactions or expressions would not influence the identification. Detective Rodriguez admitted he could have placed the photographs in envelopes or folders to further reduce the risk that he might influence the identification; he testified that he did not do so because it was not required. Detective Rodriguez admitted that after Garcia had made the indentification he told Garcia that the police had someone in custody.

In addition to cross-examining Garcia and Detective Rodriguez about the circumstances of the photographic identification, Grace's trial counsel tried to undermine the identification in at least three other ways. Each time, the attempt was foiled by the district court. First, he sought to question Detective Rodriguez...