United States v. Smith

967 F.3d 1196

UNITED STATES of America, Plaintiff-Appellee,

v.De Andre SMITH, Defendant-Appellant.

No. 18-13969

United States Court of Appeals, Eleventh Circuit.

July 30, 2020

Sivashree Sundaram, U.S. Attorney's Office, FORT LAUDERDALE, FL, Carol Herman, Daniel Matzkin, Emily M. Smachetti, U.S. Attorney Service - SFL, MIAMI, FL, for Plaintiff - Appellee.

Timothy Day, Bernardo Lopez, Michael Caruso, Federal Public Defender, Federal Public Defender's Office, FORT LAUDERDALE, FL, for Defendant - Appellant.

Before LUCK, ED CARNES, and MARCUS, Circuit Judges.

ED CARNES, Circuit Judge:

After a six-day trial, a jury found De Andre Smith guilty of three counts of Hobbs Act robbery, one count of carjacking, and four counts of brandishing a firearm in furtherance of those crimes of violence. The district court sentenced him to 1,105 months in prison. He raises various challenges to his convictions and sentence, none of which succeeds.

I. FACTS AND PROCEDURAL BACKGROUND

Smith's convictions stem from three armed robberies and one carjacking, crimes he committed on two days in December 2017. We will set out only those details of each crime that are relevant to the issues in this appeal.

A. Smith's December 12 Robbery of Brown

On December 12, 2017, Smith struck Miechelle Brown in the right eye with a pistol, knocking her unconscious, and robbed her. She lost her eye as a result of Smith's assault.

At the time of the attack and robbery, Smith and Brown were not strangers. They had met earlier that month in Fort Lauderdale, Florida. Smith introduced himself as "Chief" and told Brown that he was an amateur rap artist and videographer. She was also in the music and entertainment industry — her business, Ill Lyricists League, Inc., provided graphic design, technical support, and audio engineering services, including for musicians’ recording sessions. She and Smith spoke about "the things [they] both did within the industry as independent artists trying to make it."

When Smith and Brown met, she was on her way to a recording session at a client's studio. She invited Smith to join her. Her client was looking for someone to videotape his recording sessions for promotional footage, and Brown thought it might be a good opportunity for Smith, who seemed like he "could have benefited from a bigger network." At the client's studio Brown engineered some recording sessions, and Smith videotaped them. The sessions took a total of about four hours, during which Smith and Brown's client became Facebook friends.

Brown ran into Smith four more times during the next week. Several times, Smith told Brown that he had a virus on his computer and asked if she could help him remove it. Brown eventually agreed, and they went to a nearby apartment complex where Smith said his computer was. He met Brown at a picnic table in the courtyard of the complex with his laptop.

While Brown worked on his computer, Smith told her that he wanted a copy of Pro Tools, an expensive video editing software that Brown used in her business. Smith offered to exchange his videographer services for the software. Brown wasn't interested. She told him that she couldn't give him Pro Tools for free, that she didn't need any video footage shot, and that if she did she would use someone else. (Smith had previously shown her part of a rap video that he produced, and she thought the video was "[p]oor quality, like amateur.") Smith responded by pulling out a pistol and aiming it at her face. He again demanded Pro Tools, and when Brown refused he struck her in the right eye with the pistol. The blow to her face caused her to lose consciousness. He took her cell phone, her wallet and cash, and a thumb drive containing software, including Pro Tools, that she used to edit video footage.

Another person in the apartment complex saw Brown stumbling around the complex and called the police, but by the time an officer arrived, Smith was gone. Brown was taken to the emergency room, where she underwent surgery in an attempt to save her eye. The efforts were unsuccessful, and her eye had to be removed.

Brown later learned Smith's real name when she saw him on her client's Facebook friend list. She also identified him in a photo lineup. And she testified at trial about the music video Smith had shown her, which the government played for the jury.

B. Smith's December 20 Crime Spree

Eight days after viciously attacking and robbing Brown, Smith committed a string of other violent crimes: one carjacking and two more armed robberies. He used a firearm each time.

First, Smith committed a carjacking. Around 9:00 p.m. on December 20, 2017, Jin Chen was standing outside the massage parlor he owned in Fort Lauderdale when Smith approached him, pointed a pistol at him, and demanded Chen's wallet, cell phone, and car keys. Chen gave Smith his wallet and car keys but said he would need to get his phone from inside the massage parlor. Instead of waiting for the phone, Smith took Chen's car and sped off.

About half an hour later Smith robbed a donut shop. Sharifun Nessa was working alone that night at a Dunkin’ Donuts in Davie, Florida, around ten miles from Fort Lauderdale where Smith had committed the carjacking. Smith entered the store, jumped over the counter, and threatened to kill her if she didn't give him the money in the cash register. He pressed his pistol into her back and demanded that she open the register. When she complied, he took the cash from it and demanded that she open a second register. She tried, but it wouldn't open, so Smith fled.

The third violent crime Smith committed that night was at a sandwich shop. Soon after leaving Dunkin’ Donuts, he entered a Subway also located in Davie. Repeating what he had done minutes before, Smith jumped over the counter, pointed his pistol at Alex Ralston, who was working alone, and demanded money. Smith stood behind Ralston at the cash register, held Ralston's shirt, and demanded that he open the register. Smith grabbed money from the register and left, telling Ralston that he would "end" him if he called the police. Eight days later, Ralston was shown a photo lineup, and he identified Smith as the robber.

C. Smith's Trial

On February 22, 2018, a grand jury indicted Smith on three counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951, for the robberies of Brown, Dunkin’ Donuts, and Subway (Counts One, Five, and Seven); one count of carjacking, in violation of 18 U.S.C. § 2119(1), for stealing Chen's car (Count Three); and four counts of brandishing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c), for his use of the firearm during the robberies and carjacking (Counts Two, Four, Six, and Eight). After a six-day jury trial, he was convicted on all counts.

The district court sentenced Smith to concurrent 121-month terms on each of the Hobbs Act robbery and carjacking counts (Counts One, Three, Five, and Seven); 84 months on the first § 924(c) count (Count Two), to be served consecutively to all other counts; and 300 months on each of the other § 924(c) counts (Counts Four, Six, and Eight), also to be served consecutively to all other counts. Each of the 300-month consecutive sentences for counts Four, Six, and Eight were imposed under § 924(c)(1)(C) & (D), which, at the time of Smith's sentencing, dictated a 25-year mandatory minimum consecutive sentence for any "second or subsequent conviction under [ § 924(c) ]," § 924(c)(1)(C) (2017), including second (and third and fourth) convictions in the same prosecution. In total, Smith was sentenced to 1,105 months (just over 92 years) in prison.

Smith raises seven challenges to his convictions and sentences.¹

II. EVIDENTIARY RULINGS

Smith challenges two of the district court's evidentiary rulings: its allowance of Ralston's eyewitness identifications of Smith as the robber (both in court and out of court) and its admission of the music video of Smith's rap song, "Sauce Drippin’."

A. Eyewitness Identification

The night of the robbery at the Subway restaurant, Ralston described the robber to police officers as a black man wearing a black hoodie, black shorts, and a black bandanna over his face. He also told the police that he saw two dreadlocks poking out from under the hoodie. Eight days later, officers showed Ralston a photo lineup consisting of Smith and five others who were chosen because they looked like Smith and matched Ralston's description of the robber. Ralston picked out Smith's photo, identifying him as the robber with 70% certainty. At trial, he also identified Smith as the robber.

Before and during trial, Smith moved to suppress evidence of Ralston's selection of Smith from the photo lineup and to prevent him from making an in-court identification of Smith as the robber. Smith argued that allowing either identification would violate his due process rights because the lineup was unduly suggestive given that he was the only person in the lineup who had two-toned dreadlocks, a distinctive physical characteristic, making Ralston's identification unreliable.

The district court held a pre-trial suppression hearing at which three witnesses testified: the crime analyst who compiled the photographs for the lineup and the two detectives who were present when Ralston was shown the lineup. In its order denying the motion to suppress, the court found that any suggestiveness resulting from Smith being the only person in the lineup with two-toned dreadlocks was "minimal," and the lineup was not unduly suggestive. The district court also reasoned that, even if the lineup was unduly suggestive, Ralston's identification of Smith as the robber "was nonetheless reliable." It found that, even though Ralston's view of Smith during the robbery was "limited," he still "had a sufficient opportunity to observe" Smith because Smith was facing Ralston as he entered the store and stood so close to Ralston that he was touching him while they were at the cash register.

We review the district court's...