United States v. Moore

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. AQUABEUS MOORE, Defendant - Appellant.

No. 17-4579

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Submitted: September 11, 2020

February 3, 2021

UNPUBLISHED

Appeal from the United States District Court for the District of South Carolina, at Charleston. Richard Mark Gergel, District Judge. (2:15-cr-00386-RMG-2)

Before WILKINSON and MOTZ, Circuit Judges, and Kenneth D. BELL, United States District Judge for the Western District of North Carolina, sitting by designation.

Affirmed by unpublished opinion. Judge Bell wrote the opinion, in which Judge Wilkinson and Judge Motz joined.

Sharnaisha Naki Richardson-Bax, BAX LAW FIRM, PA, Beaufort, South Carolina, for Appellant. Sherri A. Lydon, United States Attorney, Columbia, South Carolina, Emily Evans Limehouse, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

BELL, District Judge:

A jury convicted Aquabeus Moore of conspiracy to commit Hobbs Act robbery, two counts of Hobbs Act robbery, and two counts of possession of a firearm in furtherance of a crime of violence. The district court sentenced Moore to 384 months and one day of imprisonment. Moore advances a number of arguments on appeal, each of which are addressed below. For the reasons that follow, we affirm.

I.

This case arises from a conspiracy to rob Rolex watches from two jewelry stores in South Carolina. The Government alleged that Moore was a member of this conspiracy and participated in the commission of the robberies by aiding in their preparation and acting as the getaway driver. In its indictment, the Government charged Moore with one count of conspiracy to commit Hobbs Act robbery and two counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951, and two counts of possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c).

At trial, the Government presented evidence showing that on February 19, 2015, two masked men entered Sylvan's Jewelers ("Sylvan's") in Columbia, South Carolina around 10:30 a.m. One man carried a handgun and the other carried a hammer. The accomplice with the gun restrained the employees while the other used the hammer to smash the glass cases containing the Rolex watches. After obtaining the watches, the men quickly left.

Surveillance footage from outside of Sylvan's recorded a third accomplice driving an older-model Oldsmobile dropping the two men off out front of Sylvan's, waiting outfront of the store while the robbery occurred, and quickly driving off as soon as the two men returned to the car. Two days after the Sylvan's robbery, investigators located the Oldsmobile just outside of Columbia. It contained evidence consistent with the robbery, including broken glass and a jewelry store display item.

On March 4, 2015, a robbery occurred at Demetre Jewelers ("Demetre") in Charleston, South Carolina under circumstances nearly identical to the February 19, 2015 robbery at Sylvan's. A Demetre employee testified that two masked robbers entered the store around 10:00 a.m. One man carried a gun and used the gun to force the employee to the ground while the second man used a hammer to smash the glass display case containing the Rolex watches. The employee witnessed the two men leave the store and jump into the passenger side of a vehicle waiting out front. The vehicle immediately drove away, indicating that a third accomplice remained inside the vehicle while the robbery took place. Security camera footage showed that the vehicle out front was a dark colored minivan.

Investigators were able to link Moore to the cars used in the Sylvan's and Demetre robberies through witnesses, DNA evidence, and latent fingerprints. Text messages discovered on phones connected to Moore and his co-conspirators indicated Moore was involved in the planning and preparation of the robberies. For example, a message sent by the leader of the conspiracy to Moore asked if he was "ready to be a driver on one of them missions I'll give you four bands" and another reminded Moore to "[g]et the gloves three pair." Cell tower data showed that a cell phone attributed to Moore travelled from the Atlanta area to Columbia the night before the Sylvan's robbery, was in the area of the Sylvan's robbery when it occurred, and travelled back to Atlanta after the robbery.Similarly, Moore's phone travelled from Atlanta to Charleston the night before the Demetre robbery, was in the area of the Demetre robbery at the time it occurred, and travelled back to Atlanta immediately after the robbery. Cell records also showed that Moore communicated with the leader of the conspiracy for 17 minutes during the time of the Demetre robbery through a cell tower in downtown Charleston.

Based on the cell phone records and fingerprints left on the van, law enforcement was able to obtain an arrest warrant for Moore. At the time of his arrest, Moore had a firearm in his left rear waistband that strongly resembled the firearm captured on surveillance video during the Demetre robbery. During an interview with law enforcement, Moore admitted to his involvement in the Charleston robbery, and specifically that he had acted as the getaway driver. Moore also allowed law enforcement to download the contents of his phone. Agents found two photos of a Rolex watch that shared the same serial number as one of the watches reported stolen from Sylvan's.

After a four-day trial, the jury convicted Moore on all counts. The district court sentenced Moore to imprisonment for 384 months and one day. He noted this timely appeal.

II.

Moore first contends that the district court erred by denying his motion for judgment of acquittal because there was insufficient evidence to convict him on the § 924(c) charges. Moore was charged with violating § 924(c) as a principal, aider and abettor, and co-conspirator. The general verdict form did not specify which theory the jury relied on for the § 924(c) convictions. Moore alleges that the Government failed to provide evidencethat he had any knowledge that a firearm would be used in the robberies, especially no "advanced knowledge" that a firearm would be used so as to convict him under an aiding and abetting theory. We disagree with Moore's argument.

We review de novo a district court's denial of a motion for judgment of acquittal. United States v. Cowden, 882 F.3d 464, 473 (4th Cir. 2018). A jury verdict should be affirmed where, "viewing the evidence in the light most favorable to the prosecution, the verdict is supported by 'substantial evidence.'" United States v. King, 628 F.3d 693, 700 (4th Cir. 2011). "Substantial evidence" is "evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." United States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006). Moreover, throughout this Court's review, we "assume that the jury resolved any conflicting evidence in the prosecution's favor." United States v. Jeffers, 570 F.3d 557, 565 (4th Cir. 2009).

"Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal." 18 U.S.C. § 2(a). Thus, "[s]o long as all of the elements necessary to find [the defendant] guilty of the crime, whether as principal or as aider or abetter, were put before the jury, conviction will be proper." United States v. Rashwan, 328 F.3d 160, 165 (4th Cir. 2003). To prove aiding and abetting under § 924(c), the Government must show that the defendant actively participated in the underlying violent crime with advance knowledge that "one of his confederates will carry a gun." Rosemond v. United States, 572 U.S. 65, 77 (2014). "Advance knowledge" means "knowledge at a time the accomplice can do something with it—most notably, opt to walk away." Id. at 78.

Evidence of a defendant's advance knowledge need not be direct. This Circuit and other circuits have affirmed § 924(c) convictions on an aiding and abetting theory when there was only circumstantial evidence of a defendant's advance knowledge. See, e.g., United States v. Benson, 957 F.3d 218, 238 (4th Cir. 2020); United States v. Jordan, 945 F.3d 245, 259-61 (5th Cir. 2019); United States v. Akiti, 701 F.3d 883 (8th Cir. 2012); Rosemond, 572 U.S. at 77 (citing Akiti approvingly); United States v. Henry, 722 F. App'x 496, 499-500 (6th Cir. 2018); United States v. Hinton, 730 Fed. App'x 719, 724 (11th Cir. 2018). This Circuit has held that "where there is evidence that a defendant extensively participated in the planning of a robbery of the type that would generally necessitate the use of firearms, such evidence is sufficient to fulfill [the advance knowledge] requirement." Benson, 957 F.3d at 238.

While the Government does not contend that there was sufficient evidence to convict Moore on a principal theory, it does argue there was ample evidence to convict Moore on an aiding and abetting theory. The Court agrees. The Government presented extensive circumstantial evidence from which a jury could conclude beyond a reasonable doubt that Moore had advance knowledge that one of his confederates would carry a gun. Evidence showed that Moore was involved in the planning of the robberies and in close communication with the ringleader throughout the conspiracy. Witness testimony explained that Moore helped obtain the vehicles used in the robberies, purchased supplies in advance of the robberies, and travelled with his co-conspirators from the Atlanta area and stayed with them in the same hotel the night before the robberies. Moreover, the Sylvan's and Demetre robberies were of the type that would generally necessitate the useof a firearm. The robberies occurred during normal business hours, when Moore would have known that employees and potential customers would be in the store,...