United States v. Reed

48 F.4th 1082

UNITED STATES of America, Plaintiff-Appellee,

v.Deon'te REED, Defendant-Appellant.

No. 20-17315

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 18, 2022 Pasadena, California

Filed September 14, 2022

Cristen C. Thayer (argued) and Ellesse Henderson, Assistant Federal Public Defenders; Rene L. Valladares, Federal Public Defender; Office of the Federal Public Defender, Las Vegas, Nevada; for Defendant-Appellant.

Peter H. Walkingshaw (argued), Assistant United States Attorney; Elizabeth O. White, Appellate Chief; Christopher Chou, Acting United States Attorney; United States Attorney's Office, Reno, Nevada; for Plaintiff-Appellee.

Before: Kenneth K. Lee and Daniel A. Bress, Circuit Judges, and Sidney A. Fitzwater,^* District Judge.

LEE, Circuit Judge:

Deon'te Reed was caught in a government sting operation, having agreed to rob a fake drug stash house to obtain cocaine. Because he and his co-conspirators brought guns with them to rob the stash house, they were charged with using a firearm in relation to a crime of violence or a drug trafficking crime. 18 U.S.C. § 924(c)(1)(A). Reed was also charged with conspiracy to commit Hobbs Act robbery and conspiracy to obtain and distribute cocaine. The jury found him guilty on both conspiracy counts. But when the jury found Reed guilty of the § 924(c) firearm offense, it did not specify whether he had used a firearm in relation to the robbery conspiracy or the drug trafficking conspiracy (or both). It is now clear, following United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), that conspiracy to commit Hobbs Act robbery cannot serve as a valid predicate for a § 924(c) conviction, and the government concedes the point. But conspiracy to distribute cocaine remains a valid § 924(c) predicate. Reed has now sought relief from his § 924(c) conviction under 28 U.S.C. § 2255, arguing that the jury had used the now-invalid Hobbs Act robbery conspiracy to convict him under § 924(c). We granted a certificate of appealability.

Our task is two-fold today. First, for convictions under § 924(c)(1)(A), we must determine what approach to use when evaluating on habeas review the error of instructing the jury on both a valid and an invalid theory of guilt if the jury does not then specify which theory it used to convict. We hold that the harmless error standard is the correct one. Second, we must apply the harmless error standard to Reed's case. We hold that the instructional error was harmless because the two conspiracies were inextricably intertwined such that the jury must have used the valid drug trafficking predicate to convict Reed of the § 924(c) offense. We thus affirm the denial of § 2255 relief.

BACKGROUND

I. A Sting Operation Leads to Reed's Arrest for Conspiring to Rob a Drug Stash House.

In September 2007, the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") opened a fake storefront in Las Vegas operating as a tattoo shop called Hustler's. ATF aimed to identify people in Las Vegas involved in the illegal firearm and narcotics trade. The government's plan was to propose to them an armed robbery of a drug stash house and then prosecute those who agreed to commit the crime.

ATF Special Agent Peter McCarthy played the role of the tattoo shop owner. Paid confidential informant Jamie Pedraza played the tattoo artist. And ATF Special Agent Richard Zayas played the role of a disgruntled drug courier.

Informant Pedraza brought Deon'te Reed to the tattoo shop. At the shop, Reed sold Agent McCarthy a pistol. Reed explained that he had more guns that he wanted to sell. Over the next weeks, the ATF decided it would approach Reed with the opportunity to rob the drug stash house. The decision was based in part on information the ATF had about Reed's involvement in several burglaries, his movement of $200,000 worth of stolen goods through pawn shops, and a pending charge in state court for conspiracy to commit armed robbery.

Agent McCarthy then directed informant Pedraza to bring Reed to the fake tattoo shop. Pedraza told Reed that he should come to the tattoo shop if he was interested in doing a "lick," slang for a robbery. On April 17, Agent McCarthy, along with several other undercover ATF agents, met with Reed in the back office of the tattoo shop. Reed brought with him two other individuals, Justin Spentz and Demonte Bratcher. Agent McCarthy told them that his "homey" (Agent Zayas playing the drug courier) had a "pretty good hit" (meaning opportunity for robbery) and that it would be up to them and Agent Zayas to handle the details of the robbery. While waiting for Agent Zayas to arrive, Agent McCarthy and Reed spoke about possible gun sales.

Once Agent Zayas arrived, Agent McCarthy left the room. Agent Zayas told Reed, Spentz, and Bratcher that he was a drug courier for some "Mexicanos, from the East Bay over near San Francisco." Agent Zayas expressed frustration that he was not being paid enough to transport the drugs and that was why he wanted to rob the stash house. He explained the normal protocol for picking up the cocaine: he would receive a call providing him the location of the stash house, which was always a different location, after which he would have only a short time to drive to the house and get the cocaine. Inside the house there would be two men, Carlos and Francisco. Francisco would be armed. Agent Zayas said that in past pickups he had observed between 22 and 39 kilograms of cocaine stored at the stash house.

Agent Zayas asked Reed whether that was "something you guys can handle?" Reed responded, "Yeah." Reed also asked if there would be cash inside the stash house, to which Agent Zayas answered that he had "never seen cash" and that "I'm not going to lie to you and tell you there's a lot of money in there." Reed then described his proposed plan for robbing the stash house. When Agent Zayas got to the stash house and knocked on the door, Reed and his men would emerge and "lay down" the person who answered along with Zayas. They might kick Agent Zayas to make it appear as though he was not part of the robbery, and then tape or tie up those whom they encountered. Reed continued, "then like we'll have somebody go around to the back to get the other dude. Lay him down, too." They would then steal the cocaine and escape. The meeting concluded with Agent Zayas stating, "And we're going to split it even. Is that cool?" to which Reed responded, "Yeah." Agent Zayas told Reed that he would come back to Las Vegas on May 12th, and they could meet then.

Next month, Agent McCarthy spoke with Reed over the phone. Reed was calling to make sure everything was "still up to date." Reed explained that he was eager to ensure the robbery would take place because he had an upcoming court date: "I got to finish paying off the rest of this lawyer, and I'm trying to come up with the money for that."

Agent Zayas met with Reed at the tattoo shop three days later. They again went over Reed's plan to rob the stash house, essentially repeating the details proposed during the April meeting. When Agent Zayas asked if Spentz and Bratcher would still be participating, Reed replied that Bratcher had broken his legs, so Reed's brother Leonard Jackson would replace Bratcher. Reed reassured Agent Zayas that he would bring along "riders," meaning people who could be trusted to carry out the robbery. Reed stated that they had guns. Zayas also re-confirmed that they would split the cocaine evenly, with Reed agreeing.

Two days later, Agents Zayas and McCarthy met with Reed and Jackson in a parking lot to tell them that the robbery would occur the next day at 6 pm. Agent Zayas told them that he had arranged for the use of a rental van so that the vehicle used in the robbery would not trace back to them. They all agreed to meet at the same parking lot the next day to carry out the robbery.

It was game time. Everyone met in the parking lot. Agent McCarthy testified that he and Agent Zayas "huddled" with Reed, Jackson, Spentz, and Steve Golden (who had come along with Spentz) in the parking lot to go over the plan. In the huddle, Agent Zayas explained the robbery plan again, that there would be 22 to 39 kilograms of cocaine, and that the people in the stash house would be armed. Agent Zayas said that "we're going to split it even." Agent McCarthy said, "When we hit it, go back to the shop and split it." Agent Zayas, trying to convey that the defendants could still back out, asked, "Cool?" to which Reed responded, "Yeah."

The group then drove in their cars to the location of the rental van. When they arrived and exited their cars, Agent Zayas signaled for a SWAT team to move in and arrest the defendants. The government recovered a Taurus PT145 pistol in Reed's car.

II. The Jury Convicts Reed on All Counts Using a General Verdict Form.

In June 2008, Reed, Jackson, Spentz, and Golden were charged with conspiring to interfere with commerce by robbery in violation of 18 U.S.C. § 1951 (Count One); conspiring to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846 (Count Two); and possessing a firearm during and in relation to a crime of violence or drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (Count Three). Both Counts One and Two named Reed, Spentz, and Golden, and charged that they conspired "with each other, and with others known and unknown."

A jury convicted Reed on all three counts. The jury was instructed that to convict Reed on Count Three, the § 924(c) charge of using or carrying a firearm during and in relation to a crime of violence or a drug trafficking offense, the government had to prove beyond a reasonable doubt that:

Defendant committed either Conspiracy to Obtain or Take Property by Means of Actual or Threatened Force or Conspiracy to Possess with Intent to Distribute Cocaine, as charged in Count One or Two of the Indictment, with all of you agreeing as to which crime defendant committed.

The verdict form...