United States v. Morrow

5 F.4th 808

UNITED STATES of America, Plaintiff-Appellee,

v.Kashawn MORROW, Defendant-Appellant.

No. 20-2259

United States Court of Appeals, Seventh Circuit.

Argued May 19, 2021

Decided July 23, 2021

Jayson Wyatt Mcgrath, I, Bradley P. Shepard, Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Indianapolis, IN, for Plaintiff-Appellee.

Joshua Levin, Attorney, JENNER & BLOCK LLP, Chicago, IL, Zachary C. Schauf, Attorney, JENNER & BLOCK LLP, Washington, DC, for Defendant-Appellant.

Before Wood, St. Eve, and Kirsch, Circuit Judges.

Kirsch, Circuit Judge.

Kashawn Morrow and several co-defendants participated in a string of four robberies over a two-month span in 2017. The first three robberies targeted various electronics stores in Indiana, and the fourth an electronics store in Ohio. As Morrow and his co-defendants attempted to make their getaway from Ohio to Indiana following the fourth robbery, they were stopped and arrested by federal law enforcement agents. As Morrow later learned, law enforcement was tracking his movements—based on information gleaned from the first three robberies—and was waiting for the right moment to intervene. Following the arrest, law enforcement was able to recover the electronics from the fourth robbery but not the other three. Morrow also confessed to his role in the robberies and was later charged in a nine-count indictment: three counts of Hobbs Act robbery (the Indiana robberies), three counts of use of a firearm in furtherance of a crime of violence (related to the Indiana robberies), one count of conspiracy to commit Hobbs Act robbery (the Ohio robbery), one count of conspiracy to use a firearm in furtherance of a crime of violence, and one count of transporting a firearm across state lines.

Morrow proceeded to trial on all counts. He admitted guilt on each charge except for the three use-of-a-firearm counts related to the three Indiana robberies, asserting that a fake firearm, not a real one, was used.¹ The jury found Morrow guilty on all counts. At sentencing, the district court imposed a 204-month-and-one-day term of imprisonment and ordered monetary restitution equal to the value of the electronics stolen in all four robberies.

On appeal, Morrow reprises his argument that a fake gun was used in the first two robberies, undermining the sufficiency of the government's evidence on the two use-of-a-firearm counts related to the first two Indiana robberies. He also argues that the government improperly used the Hobbs Act conspiracy charge as a predicate for the conspiracy-to-use-a firearm-in-furtherance-of-a-crime-of-violence charge; that Hobbs Act robbery is not a crime of violence, invalidating the three counts concerning use of a firearm in furtherance of a crime of violence; and that because the government had the electronics from the fourth robbery in its possession at the time of sentencing, the district court erred in ordering monetary restitution for those stolen goods. For the reasons stated below, we agree with Morrow's restitution argument, but otherwise affirm Morrow's convictions and sentence.

I

A

Kashawn Morrow's robbery spree began on February 19, 2017. He and co-defendant Christopher Davis drove to a Sprint cellular store in Indianapolis. While Davis waited in the car, Morrow entered the store unarmed and spoke with the store's employee, Samantha Brougham. Morrow then left the store and got back into the car with Davis. Moments later, Davis entered the store. He locked the door, approached Brougham while pointing a gun at her, and forced her to open the store's back room. Davis then held Brougham at gunpoint in the back room and ordered another employee, Tristan Weddington, to put various electronic devices into a backpack Davis had with him. Backpack in hand, Davis exited the store and rejoined Morrow in their car to flee the scene.

Nine days later, on February 27, Morrow and Davis robbed a Radio Shack/Sprint cellular store in Indianapolis using a strategy similar to the February 19 robbery. After the pair arrived, Morrow got out of the vehicle and entered the store to talk to one of the employees on duty, Josiah Norton. Morrow then left the store and returned to his vehicle; Davis entered, locking the door and pointing a gun at Norton and another employee, Maleek.² Pressing the gun to the back of Norton's head, Davis ordered the employees to go to the back room and to fill his backpack with various electronic devices. Davis later exited the store with the backpack, fleeing with Morrow in the waiting vehicle.

On March 4, Morrow and Davis targeted a Sprint cellular store in Indianapolis. For this robbery, both Morrow and Davis entered the store. Davis was armed with the same gun he used in the first two robberies. Once inside, Morrow and Davis forced several employees into the back room and ordered them to fill two bags with various electronic devices. One of the employees, Paopong Pengthieng, was armed with a pistol. When Morrow and Davis discovered Pengthieng was armed, they tried to wrestle his pistol from him. In the struggle Pengthieng was able to eject the pistol's magazine and fire the weapon once, clearing the chamber and hitting no one. Morrow then took control of the gun and pointed it at Pengthieng. When the struggle concluded, Morrow and Davis took the bags filled with electronics and fled the scene.

Morrow and Davis did not attempt another robbery until March 30. Unbeknownst to them at the time, law enforcement officers from the Indianapolis Metropolitan Police Department and the Federal Bureau of Investigation were actively surveilling the vehicle Morrow and Davis used in the February 19 robbery. For this heist, they were joined by two other accomplices, David McGhee and Darrin Bell. The four drove in two vehicles—one of them the vehicle law enforcement was surveilling—to Troy, Ohio. After scoping out several electronics shops, the crew settled on robbing a Verizon store. This time McGhee was the first to enter. Once inside he spoke with its only employee, Gerad Jacobs. Morrow, Davis, and Bell then entered the store. Morrow was carrying a .22 caliber Mossberg rifle. The crew forced Jacobs to open the back room and load various electronic devices into a bag. When Jacobs finished, the crew told Jacobs to lie on the ground and threatened him before making their escape.

Their escape, however, was short-lived. Law enforcement stopped both vehicles in Indiana as the men were traveling back to Indianapolis. In the trunk of the vehicles, law enforcement officers discovered the loaded rifle Morrow carried, another loaded handgun, and $61,409.38 worth of electronic devices. Shortly thereafter, Morrow and Davis waived their Miranda rights and agreed to speak with the officers. Both confessed that they had committed each of the four robberies described above. Morrow's interviewer, FBI agent Adam Vail, remarked at one point, "Thank God [Davis] didn't fire a shot," to which Morrow replied, "We didn't have no bullets. We don't go in the store with bullets."

Law enforcement thereafter twice searched Morrow's apartment. They did not find a gun of any kind, but they did discover a loaded 9mm Smith and Wesson magazine in Morrow's bedroom dresser. A later search of Davis's cellphone revealed a picture of Davis on a countertop in Morrow's kitchen with a black and silver handgun bearing the Smith and Wesson insignia.

B

Morrow was charged in a nine-count indictment. Counts 1, 3, and 5 charged Morrow with Hobbs Act robbery under 18 U.S.C. § 1951(a) for the February 19, February 27, and March 4 robberies, respectively. Counts 2, 4, and 6 charged Morrow with using or aiding and abetting the use of a firearm during a crime of violence under 18 U.S.C. § 924(c)(1)(A)(ii) and 18 U.S.C. § 2. Each § 924(c) count identified the underlying crime of violence by reference—that is, count 2 referenced the "robbery as charged in" count 1, count 4 referenced count 3, and count 6 referenced count 5. The § 924(c) counts also charged Morrow with brandishing the firearm. The government charged conspiracy to commit Hobbs Act robbery in count 7 concerning the March 30 robbery in Troy, Ohio.³ In count 8, the government charged Morrow as follows:

On or about March 30, 2017, KASHAWN MORROW, CHRISTOPHER DAVIS, DAVID MCGHEE and DARRIN BELL , in the Southern District of Indiana and elsewhere, did conspire to use a firearm during and in relation to a crime of violence for which the person may be prosecuted in a Court of the United States to wit, robbery. In furtherance of that conspiracy, one or more co-conspirators committed the overt acts of casing a cellular phone retail store in Richmond, Indiana, and/or the armed robbery of a cellular phone retail store in Troy, Ohio. All in violation of Title 18, United States Code, Section 924(o).

R. 38 at 4. Count 9 charged Morrow with transporting a firearm across state lines intending to commit a felony under 18 U.S.C. § 924(b).

Morrow and Davis proceeded to trial on all counts. At trial, Morrow testified in his defense, conceding his guilt for each of the four robberies. But Morrow challenged counts 2, 4, and 6, the § 924(c) charges related to the February 19, February 27, and March 4 robberies, on two fronts: (1) because he was in the car when Davis was inside the stores, he did not "brandish" a firearm; and (2) because Davis used an Airsoft gun, the government could not meet its burden to prove a "firearm," as defined under § 924(c)(1)(A), was used. The jury agreed with Morrow on the former, finding him not guilty of brandishing a firearm; accordingly, we focus our discussion of the trial evidence on the latter.

We begin with the eyewitness testimony. One of the first robbery's victims, Brougham, was asked whether she "g[o]t a good look at the gun." R. 293 at 54. She responded, "[y]es and no," noted that she "c[ould] distinguish the color," admitted that she was "not very smart with guns," and added: "I can tell you it was a handgun and that it was dark gray." Id. at 54....