United States v. Katana

93 F.4th 521

UNITED STATES of America, Appellee, v. Grace KATANA, Defendant, Appellant.

No. 22-1867

United States Court of Appeals, First Circuit

February 22, 2024

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS, [Hon. Timothy S. Hillman, U.S. District Judge]

Daniel J. Cloherty, with whom Cloherty & Steinberg LLP was on brief, for appellant.

Randall E. Kromm, Assistant United States Attorney, with whom Joshua S. Levy, Acting United States Attorney, was on brief, for appellee.

Before Rikelman, Selya, and Howard, Circuit Judges.

RIKELMAN, Circuit Judge.

Grace Katana appeals his conviction after a jury trial for conspiracy to interfere with interstate commerce by robbery in violation of 18 U.S.C. § 1951. He presents three interconnected arguments on appeal, all focused on his claim that the indictment charged him with conspiring to rob Joseph Wilson, whereas the government at trial proved only that he had conspired to commit a break-in at Wilson's home. Specifically, Katana argues that: (1) the district court's jury instructions and the government's arguments at trial constructively amended the indictment in violation of his Fifth and Sixth Amendment rights; (2) the government's evidence at trial amounted to a prejudicial variance of the charge set forth in the indictment; and (3) there was insufficient evidence to support his conviction. After careful consideration, we affirm.

I. BACKGROUND

A. The Indictment

In July 2019, Katana and three other individuals -- Junior Melendez, Keith Johnson, and Shaun Walker -- were charged with conspiring to interfere with interstate commerce by robbery in violation of the Hobbs Act, 18 U.S.C. § 1951. The indictment alleged that:

From at least March 19, 2019 through March 25, 2019, in Worcester, Rockland, and elsewhere in the District of Massachusetts, . . . [Melendez, Johnson, Katana, and Walker] conspired with each other . . . to obstruct, delay and affect interstate commerce and the movement of articles and commodities in commerce by the robbery of Person # 1, an individual residing in Rockland, Massachusetts who was engaged in the sale of custom glass smoking devices.

In May 2022, Melendez and Walker pleaded guilty, and the district court severed Johnson from the trial scheduled to begin later that month. Katana proceeded to trial, which took place over five days that spring.

B. The Evidence

We recount the relevant facts as presented at trial "in the light most favorable to the jury's verdict, consistent with record support." United States v. Akoto, 61 F.4th 36, 38 (1st Cir. 2023).

In mid-March of 2019, the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") initiated a court-approved wiretap of Melendez's cell phone.¹ During the course of its investigation, ATF intercepted numerous calls (some of which we detail below) and SMS text messages to and from one of Melendez's cell phones. Based on information gleaned from these calls and texts, ATF began to suspect that Melendez was preparing to commit a crime at a residence, with help from Katana, Johnson, and Walker. ATF ultimately learned that the target residence was located at 6 French Road in Rockland, Massachusetts, where an individual named Joseph Wilson was living with his then-girlfriend, Jennifer O'Brien. From that residence, Wilson operated a business, which he advertised online, selling ornate glassware for smoking tobacco and marijuana to customers in and out of Massachusetts. The estimated value of the glassware at 6 French Road in late March 2019 was approximately $40,000.

On March 18, 2019, ATF intercepted a phone call from Melendez to an individual named Tyrone Walker.² Melendez reported that he had "something for [Tyrone] and [Johnson] to do together" and asked whether he was interested. Tyrone answered affirmatively and indicated that he would talk to Melendez "about it" when he saw him in person.

The following day, Melendez told Johnson that he was waiting to "get . . . all the details" from Katana, who was out of town for the next few days.³ After Melendez added "it is going to be you. . . . and [Shaun Walker]," Johnson responded: "I'd rather take [Tyrone] though for the body. It's more body."⁴ Melendez indicated they would "figure it out," but Johnson relented: "I'm going in first; it doesn't even matter."

Two days later, on March 21, Katana told Melendez that he would be arriving on a flight the next day, adding "we can do that shit Sunday if anything." Katana asked if "it [was] a go," and Melendez responded: "Yeah, . . . they're all lined up."

On March 23, Melendez informed Johnson that they would be proceeding "tomorrow" and that Katana was "out there . . . getting the whole layout."⁵ Melendez also noted that "it's in the Bean,"⁶ in "a rich, rich ass neighborhood." When Johnson asked who was "in the crib," Melendez answered: "He's gonna let me know everything today" and "he's out there right now." The following day, March 24, Melendez updated Johnson that the timing would be "around two, three in the morning." After overhearing this conversation, ATF began constant physical surveillance of Johnson and Melendez.

On March 25 at approximately 1:42 a.m., Katana told Melendez: "I'm ready when you guys are. I'm about to be in Worcester." The two agreed to meet in a particular area of Worcester, and ATF agents followed Melendez there. About twenty minutes later, Melendez called Katana again and asked: "What are we doing, are we waiting until tomorrow?" After a brief exchange, Katana indicated that he had Wilson's "schedule" and added, "that's what I wanna show you, come get me and I'll show you and then we'll decide."⁷ Melendez then decided that "2 or 3 in the morning is not really the best time to do it" and that he would "make them scope it out" and "make sure everything is right," noting that he wanted "to make sure they get away with it."

ATF continued physical surveillance of Melendez early that morning. At approximately 2:30 a.m., ATF spotted Melendez's black Dodge Charger, running with its headlights on, parked in front of a house on Bowker Street in Worcester for about five or ten minutes before leaving the area. Concerned that Melendez's plan was to target a residence on Bowker Street, ATF asked two members of the Worcester Police Department to sit on Bowker Street for the night. At approximately 3:15 a.m., Worcester Police observed a parked sedan and Honda CR-V on that street. Three middle-aged men emerged from one of the cars and loaded a dolly from one car to the other.

On the afternoon of March 25, at approximately 12:26 p.m., Katana arrived at Melendez's residence in Worcester. About half an hour later, Johnson told Melendez that he was ready to be picked up and asked: "[Y]ou got the thing or I'm bringing mine?" Melendez answered: "Well, we finding out right now. He might not -- he probably not even there, so I'ma find out right now." Melendez added: "Bring yours . . . just in case. If you want. Just bring one." When Johnson asked if Melendez was "sure," Melendez instructed: "Bring one." Shortly after this conversation, Melendez, Katana, and Johnson began driving east toward Boston. Walker traveled in a separate car.

Eventually, Walker ended up at the parking lot of a Home Depot in Rockland, Massachusetts, about sixty miles from Worcester. At approximately 2:48 p.m., Melendez called Walker and instructed: "Go in Home Depot. We gonna go . . . see if . . . the whip and shit is there. . . . and come right back. Go grab whatever we need, . . . a pry bar, whatever the fuck we need. We'll be right back. We're only three minutes from his house." A few minutes later, Melendez and Katana arrived at Wilson's residence.⁸

Wilson was not home at 6 French Road because he was on a snowboarding trip in Maine,⁹ but O'Brien was. O'Brien's vehicle was parked in the driveway, and she was playing music "fairly loud[ly]" while waiting for her friend, Rachel Connors, to arrive. At around 2:53 p.m., Katana walked up to the residence and took some packages containing glassware that had been delivered to the front porch. Shortly after Katana left with the packages, Connors arrived and, as she neared the front door, could hear "pretty loud[ ]" music playing inside the residence, even though she was partially deaf.

Melendez and Katana then drove to the Home Depot in Rockland, less than half a mile from 6 French Road. At approximately 3 p.m., Melendez called Walker and asked where he was. Walker responded that he was in the Home Depot parking lot, but that he and Johnson "can't be going in and showin' our face." After Melendez indicated he was inside the Home Depot, Walker instructed him to "grab a crowbar" or "[w]hatever" Melendez thought was "going to work." Melendez then informed Walker: "There's one whip in the parking lot. . . . He went to the door. He not even . . . try to look in the window, but don't think anybody there anyways, with the light off so we're not sure. So he's trying to call his other man right now to see." (Second alteration in original). Melendez added that they were "gonna look" and "make the decision after that."¹⁰ A few minutes later, Melendez and Katana purchased from Home Depot a yellow crowbar, serrated utility blades, and an eight-inch screwdriver.

Believing a crime was imminent, ATF and Massachusetts State Police descended on the Home Depot parking lot and found Melendez, Katana, Johnson, and Walker in two parked cars. Melendez was in a black Dodge Charger, with Katana "in [its] vicinity," and Walker and Johnson were in a Honda CR-V, which was registered to Katana's sister. Officers found a black ski mask in the Dodge Charger and the yellow crowbar, a large dolly, and a loaded firearm in the Honda CR-V. Officers arrested Johnson and Walker on state firearm charges but permitted Melendez and Katana to leave so that ATF could continue monitoring their communications and secure additional evidence against Melendez and his associates.

In June 2019, following...