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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA. (D.C. NO. 4:12-CR-00050-JHP-9).
Terry L. Weber, Tulsa, Oklahoma, for Defendant-Appellant.
Danny C. Williams, Sr. (Joel-lyn A. McCormick with him on the brief), United States Attorney, Tulsa, Oklahoma, for Plaintiff-Appellee.
Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges. McHUGH, Circuit Judge, dissenting in part and concurring in part.
PHILLIPS, Circuit Judge.
Dejuan Hill was indicted, tried, and convicted of both robbing Arvest Bank in Tulsa, Oklahoma in November 2011 and taking part in a larger conspiracy to rob banks, a credit union, and four pharmacies in the Tulsa area from 2009 to 2011. Before and during trial, Dejuan filed motions related to the four issues that he now raises on appeal: (1) a motion to dismiss Count One, arguing that a fatal variance existed because the Indictment against him charged a single global conspiracy but the evidence at trial instead proved multiple, smaller conspiracies; (2) a pretrial motion for misjoinder of defendants, contending that joining his charges to those of his co-defendants was improper and so prejudicial that a separate trial was required;  (3) a motion in limine to exclude evidence of gang affiliation, arguing that the evidence was both irrelevant to his charges and unfairly prejudicial to him; and (4) a motion for judgment of acquittal at the close of the evidence, arguing that the government produced insufficient evidence to convict Dejuan of any of his three charges. The district court denied each of these motions.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. While we agree with Dejuan that there was a variance between
the single conspiracy charged in the Indictment and the evidence of individual conspiracies presented at trial, we conclude that this variance was insufficiently prejudicial to affect Dejuan's substantial rights. In addition, we affirm on all other issues raised in this appeal.
I. Factual Background
Confronted with a series of robberies of banks and pharmacies in Tulsa, Oklahoma, Tulsa police--with the FBI's help--investigated. Law enforcement came to believe that the local Hoover Crips gang was connected to the robberies. The Tulsa Police Department has a multi-step process through which it certifies individuals as gang members and--based principally on his certification as a member of the Hoover Crips--police identified Dejuan as a person of interest in this string of robberies.
Based on their investigation, law enforcement officials eventually came to believe that several men associated with the Hoover Crips, including Dejuan, had conspired to commit a number of these robberies. A federal grand jury returned a ten-count indictment against this group of alleged co-conspirators, charging each with conspiring between August 2009 and November 2011 to commit six robberies in violation of 18 U.S.C. § 1951(a). The grand jury indicted Dejuan as a member of this broad conspiracy and also charged him with the November 2011 robbery of Arvest Bank and--as part of that robbery--with using a firearm during a crime of violence, in violation of 18 U.S.C.§ 924(c)(1)(A)(ii).
A. The Arvest Bank Robbery
The Arvest Bank robbery occurred on November 5, 2011. The government argued at trial that Dejuan and Vernon Hill robbed the bank and that Stanley Hill acted as the getaway driver. At around 8:30 a.m., two armed, masked men entered the bank. One carried a semiautomatic pistol and pointed it at customers while screaming profanities and ordering everyone onto the ground. Eyewitnesses said that the men were black males, based on the uncovered parts of their faces. Tellers complied with the robbers' demands to empty the cash drawers. Included in the cash that the tellers handed over to the robbers were marked bills and a GPS tracer. Police traced the GPS tracking device to Vernon Hill's home at 1107 E. Pine in Tulsa.
Tulsa Police Department Officer Donnie Johnson received a call about the bank robbery soon after 8:30 a.m. Based on the movement of the GPS tracer--but before the police determined that the GPS tracking device had stopped at 1107 E. Pine--Johnson drove his patrol car to the area by 1107 E. Pine. Police were told to be particularly vigilant regarding that house because they had Vernon pegged as a likely bank robber and they believed he resided there. Paying close attention, Johnson soon saw a man he later identified as Dejuan drive a black Nissan car from a one-way alley behind 1107 E. Pine and past him. As Dejuan passed by Johnson, the two men locked eyes for a few seconds.
Police detained Vernon and Stanley Hill as they separately attempted to leave 1107 E. Pine around two hours after the robbery. After obtaining a search warrant, police officers and FBI agents entered the house and seized (1) the stolen money, which was $311.52 short of the $86,918.52 taken but still included the marked bills and GPS tracer, (2) one set of robber's clothes (black sweatshirt, black pants, and black ski mask), and (3) a Glock .45 caliber pistol.
The government initially prosecuted Vernon and Stanley Hill for the Arvest Bank robbery without including Dejuan. Following a court proceeding related to the prosecution of Vernon and Stanley, Officer Johnson noticed Dejuan outside the courtroom and recognized him as the person he had seen driving away in the black Nissan from the alley behind 1107 E. Pine. During a later court proceeding in that same prosecution, Officer Johnson identified Dejuan as the driver of the black Nissan. After Officer Johnson's in-court identification, Dejuan did not attend any further court proceedings in the case against Vernon and Stanley.
After evaluating all the evidence, the government expanded its charges to include Dejuan as a co-conspirator in the string of robberies and as the third robber in the Arvest Bank robbery. Before addressing the government's evidence at trial in detail, we briefly summarize it here: (1) Officer Johnson saw Dejuan driving away from 1107 E. Pine, his brother's house, minutes after the bank robbers would have arrived there; (2) Dejuan was driving a black Nissan four-door sedan, which was the same make, color, and style as a car that belonged to Whitney Landrum, his brother Stanley's girlfriend and the mother of Stanley's children; (3) cell phone records showed that three cell phones--one registered to Vernon (Vernon's phone), the other two to Whitney Landrum--had all been located near Whitney Landrum's house on the morning of the bank robbery; (4) cell phone records showed that Vernon's phone called one of Whitney Landrum's phones (Landrum 1) from near the bank very soon before the bank robbery (the second phone registered to Whitney Landrum (Landrum 2) showed no calls after being located near Whitney Landrum's house that morning, suggesting it had been turned off); (5) cell phone records showed that Vernon's phone and Landrum 1 were near 1107 E. Pine very soon after the bank robbery; (6) cell phone records showed that Landrum 1 left 1107 E. Pine and headed south at the about the same time that Officer Johnson saw Dejuan driving away in the black Nissan; (7) during the 30 minutes after Officer Johnson and Dejuan locked eyes as Dejuan
drove away from the alley behind 1107 E. Pine, Landrum 1 called Vernon's phone twice, and received one call from Vernon's phone; (8) upon searching 1107 E. Pine, officers found one set of robber's clothing but not the second set; (9) officers found at 1107 E. Pine all but $311.52 of the stolen $86,918.52; and (10) the bank's video and the eyewitness testimony showed that the second bank robber (in addition to Vernon) was of a size and complexion similar to Dejuan but not similar to Stanley.
As briefly alluded to above, the government used the cell phone records to support its position that Dejuan and Stanley Hill had used the two phones registered to Landrum. Landrum 2, which had phone number (918) 946-1576, was active on the morning of November 5. It was located in the vicinity of 1107 E. Pine around 7 a.m. and then was located near Landrum's address--811 North Irvington--around 8 a.m. After that time Landrum 2 showed no activity until November 6, suggesting that it may have been turned off. The other two phones--Landrum 1, which had phone number (918) 313-3860, and Vernon's phone, which had phone number (918) 282-9204--were also located in the vicinity of Whitney Landrum's address at around 7:15 a.m. on November 5 and were next used while close to Arvest Bank at 8:30 a.m. Vernon's phone made a call to Landrum 1 around 8:30 a.m. in the vicinity of the bank. Around this same time, an eyewitness saw two men, whose descriptions matched those of the robbers, standing outside the bank, one speaking on a phone. After this, Landrum 1 showed no activity until around 9 a.m., when cell tower information showed it in the vicinity of 1107 E. Pine. As the cell-phone tower records showed, Landrum 1 began moving south after this and exchanged at least three calls with Vernon's phone in the next half hour. Landrum 1's movement corresponded with the period in which Officer Johnson saw Dejuan leave the area around 1107 E. Pine. The first call from Landrum 1 to Vernon's phone occurred at 9:04 a.m., which was around the same time that Officer Johnson and Dejuan made eye contact outside of 1107 E. Pine.
The government also tied Dejuan to the robbery with video from an Arvest Bank security camera and eyewitness descriptions of the robbers. Based on both the video and eyewitness observations, the Arvest Bank robbers were of similar height, with one having a light-brown complexion and the other a dark-brown complexion. Because Stanley was shorter and of a different complexion (medium-brown) than the bank robbers, the government argued that Stanley was the getaway driver.
B. The Larger Conspiracy
The evidence supporting Dejuan's connection to the larger conspiracy focused mostly on (1) the Tulsa Police Department's " certification" of Dejuan as a Hoover Crip and (2) Dejuan's Hoover Crip tattoo. At trial, the government sought to demonstrate how all of the defendants' connections to the larger conspiracy revolved around their gang membership. Duncan Herron, a cooperating witness for the government, had been a member of the larger conspiracy but later pleaded guilty and testified for the government. As concerned Dejuan's role in the broad conspiracy, Herron testified merely that he knew Dejuan as Deandre Hopkins's brother, that he had known Dejuan for a couple years but did not consider him a close
friend, and that he was unsure whether Dejuan was a Hoover Crip.
C. Procedural History
Of the eight alleged co-conspirators, only Dejuan, Vernon, and Deandre Hopkins ultimately proceeded to trial together. The other five pleaded guilty. There were six other robberies discussed in depth at trial--IBC Bank, Dooley's Pharmacy, Metro Pharmacy, CVS Pharmacy, Barnes Pharmacy, and Tulsa Municipal Employees Federal Credit Union--but no evidence directly linked Dejuan to any of these robberies. However, because Count One included all of these robberies except CVS as overt acts--and evidence of the CVS robbery was still included at trial because it allegedly involved Vernon, who was tried with Dejuan--Dejuan's trial included evidence regarding all six robberies.
Ultimately, the jury convicted Dejuan on the three charges against him--Count One: conspiring to obstruct, delay, and affect interstate commerce by robbery (the global conspiracy); Count Nine: obstructing, delaying, and affecting interstate commerce by robbery (Arvest Bank); and Count Ten: using, carrying, and brandishing firearms during and in relation to a crime of violence (Arvest Bank).
Dejuan raises four issues on appeal. First, he argues that there was insufficient evidence to convict him of the robbery of Arvest Bank. Second, he asserts that there was a substantially prejudicial variance between the single global conspiracy charged in the Indictment and the evidence of individual conspiracies that the government produced at trial. Third, he contends that the trial court erred either by not granting his motion for misjoinder or by failing to sever his trial from that of his co-defendants. Finally, he appeals the denial of his motion to exclude the gang evidence under Fed.R.Evid. 403.
II. Sufficiency of the Evidence
We review de novo whether the government presented sufficient evidence to sustain a conviction. United States v. Prince, 647 F.3d 1257, 1268 (10th Cir. 2011). Evidence is sufficient to support a conviction if, viewing the evidence and all reasonable inferences from it in the light most favorable to the government, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. Id. " We will not weigh conflicting evidence or second-guess the fact-finding decisions of the jury." United States v. Summers, 414 F.3d 1287, 1293 (10th Cir. 2005).
Having said this, however, a conviction must be grounded in more than a mere suspicion of guilt when viewing the evidence in its entirety. Id. at 1294. In the criminal context, this rule derives from the government's burden to prove its case beyond a reasonable doubt. Id. at 1294-95. The government may use circumstantial evidence to fulfill this burden, and the " jury has wide latitude to determine factual issues and to draw reasonable inferences from circumstantial evidence." Id. at 1295 (quoting United States v. McCarrick, 294 F.3d 1286, 1293 (11th Cir. 2002)). " An inference is reasonable if it 'flows from logical and probabilistic reasoning,' i.e., with experience serving as the touchstone, a jury's inference is permissible where there is a reasonable probability that the conclusion flows from the facts in evidence." Id. (internal citations omitted). Or, put slightly differently, " an inference must be more than speculation . . . to be reasonable . . . . A jury will not be allowed to engage in a degree of speculation and conjecture that renders its finding a guess or mere possibility. Such [an inference] is infirm because it is not based on the evidence."
United States v. Jones, 44 F.3d 860, 865 (10th Cir.1995) (citation and quotation marks omitted).
Here, the government relied primarily on circumstantial evidence to tie Dejuan to the robbery of Arvest Bank, and we must evaluate the reasonableness of the inferences needed to move from that evidence to a conviction of Dejuan for the crimes charged. So what could the jury tell from that evidence? It could strongly infer from Officer Johnson's testimony that Dejuan had been inside 1107 E. Pine with Vernon and Stanley because Officer Johnson saw him drive away from a one-way alley behind the house. It could also infer from the lack of the second robber's clothing at the house that one of the robbers had either left the house soon after arriving or had been dropped off somewhere on the way to the house. The cell phone records provided the information that a call was placed on Landrum 1 to Vernon's phone at about the time Officer Johnson saw Dejuan leaving Vernon's property (and that at least three calls occurred between those two phones over the next 30 minutes). The cell phone records also detailed that Landrum 1 was near 1107 E. Pine when the first call was placed but continued to move south as the calls progressed. Thus, the jury needed to take only a single inferential step to determine that this was Dejuan calling Vernon, Dejuan having just been seen by Officer Johnson.
The jury could also tell two other important things from the cell phone records introduced at trial. First, Vernon's phone placed a call to Landrum 1 right before the Arvest robbery. The government posited that this was Vernon calling Stanley, the getaway driver, before he and Dejuan entered the bank. This assertion was corroborated by an eyewitness who testified to having seen two men whose description matched that of the robbers standing outside of the bank shortly before the robbery, one of them speaking on a cell phone. And, second, the government's cell phone evidence suggested that the three phones at issue--Vernon's phone, Landrum 1, and Landrum 2--were all located in the vicinity of Whitney Landrum's house on the morning of the robbery. Taking all reasonable inferences in the government's favor, the jury could believe from this evidence that Vernon, Dejuan, and Stanley were all in the same location shortly before the robbery of Arvest Bank. This evidence also allowed the jury to infer that, after leaving 1107 E. Pine, Dejuan called Vernon using the very phone that Vernon had called when standing outside of the bank before the robbery.
The evidence from inside the bank--the videotape and eyewitnesses--allowed the jury to determine that Stanley was not one of the robbers who entered the bank. It also allowed the jury to see--consistent with other testimony--that the second robber was about the same height and complexion as Dejuan.
How, then, could the jury move from these reasonable inferences to a supportable determination that Dejuan was the second robber? Each inference requires additional steps. First, the jury had to infer from Dejuan's presence at 1107 E. Pine not merely that he was at his brother's house, but that he arrived with Vernon and Stanley in the car after driving there with them from the Arvest Bank robbery. It also had to infer from the lack of a second robber's outfit and the missing
$311.52 not merely that someone had these items, but that Dejuan was the person who had them. And, finally, it had to infer from the cell phone records that, upon seeing Officer Johnson, Dejuan called Vernon to tell him that the police may be zeroing in.
We believe that the combination of circumstantial factors presented at trial allowed the jury to properly take these steps and determine, beyond a reasonable doubt, that Dejuan was the second robber. Understanding this conclusion requires a brief explanation of the relevant precedent regarding the use of purely circumstantial evidence. The Supreme Court long ago counseled that " [c]ircumstances altogether inconclusive, if separately considered, may, [by] their number and joint operation . . . be sufficient to constitute conclusive proof." The Reindeer, 69 U.S. 383, 401, 17 L.Ed. 911 (1864). Circumstantial evidence alone may permissibly support a jury's guilty verdict, see Desert Palace Inc. v. Costa, 539 U.S. 90, 100, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003) (" [W]e have never questioned the sufficiency of circumstantial evidence in support of a criminal convictions, even though proof beyond a reasonable doubt is required." ), and the government's evidence need not remove all doubt, but merely those doubts that are reasonable. See Thornburg v. Mullin, 422 F.3d 1113, 1130 (10th Cir. 2005) (holding that a prosecutor's " state[ment] [to the jury] that 'beyond a reasonable doubt' does not mean beyond 'a shadow of a doubt or all doubt' was not a constitutional violation" because it was not misleading).
As noted above, no single piece of the government's evidence alone conclusively establishes that Dejuan was the second robber. Taken together, however, we believe the combination of circumstances dispels any other reasonable conclusion. Any doubt that Dejuan was the second robber captured on video by the Arvest Bank security camera would require the presence of a fourth individual (other than Vernon, Stanley, or Dejuan) of the same height and complexion as Dejuan. This fourth individual would have had to do one of three things: (1) gotten out of the car on the way from the bank to 1107 E. Pine wearing the bank robbery clothing (a possibility that the GPS tracer's movements makes unlikely); (2) never entered the getaway car; or (3) managed to sneak out of 1107 E. Pine unnoticed despite the presence of numerous police officers in the vicinity. Under this scenario, Dejuan would have had to be in the unlucky position of being in the house unaware when Stanley and Vernon (his brothers and fellow gang members) returned from the bank robbery, leaving shortly thereafter when Officer Johnson identified him, and unwittingly being in possession of, and using, the very same phone that Vernon called shortly before he robbed the bank.
Although this sequence of events may be conceivable, believing that it came to pass strains credulity. We must be mindful that, again, our standard does not require that the government's evidence eliminate all doubts, but merely reasonable doubts. See id. Given the sequence of events that would be required for Dejuan not to be the second robber, we hold that the government has met its burden here.
We believe that Dejuan's strongest case regarding insufficient evidence is Summers, so we consider it in depth. In Summers, two men--Omar Mohammad and Curtis Frazier--robbed a Bank of America branch in Albuquerque, New Mexico. 414 F.3d at 1292. A witness saw the robbers get into a gold Acura as it fled the bank's parking lot. Id. Our review of the Summers record shows that, as the investigation progressed, this witness--who was
viewing the car from above at a diagonal and could only see the driver's side--came to believe that the car was moving when the robbers entered it, implying the existence of an additional accomplice. (Summers R., Tr. Trans. vol. 1, at 169-70.) The car was later found near the Vista Montano Apartments. Summers, 414 F.3d at 1292.
Before the robbery, the apartment manager of Pinnacle View Apartments (located adjacent to Vista Montano Apartments) had seen three black men, none of whom she could identify, walk onto the apartment complex grounds after parking a gold Acura outside the gate. Id. Her suspicions aroused, she had maintenance men watch to see where the three men went. A maintenance worker saw the three men--one carrying a black bag--enter an apartment in the complex. Id. The apartment was rented to Adrienne McCastle, whose boyfriend--Marvin Thomas--resided at the apartment with her (although Thomas's name was not on the lease). Id. About five to ten minutes later, the maintenance worker saw four men, including Thomas, leave the apartment and drive away in a red Ford Escape SUV. Id. The same maintenance worker saw Thomas return alone in the same Ford Escape. Id. Although this worker saw Thomas then leave the apartment a second time after around five to ten minutes, no one saw him or anyone else return to the apartment. Id.
By this time, police had contacted the apartment manager to ask if she had seen any cars matching the getaway car used in the robbery near the apartment complex. Id. Given that the description of the gold Acura matched, police started watching the apartment. Id. Although no witness saw anyone enter the apartment after Thomas's second departure, the police later saw four black men--Thomas and Summers among them--leaving the apartment. Id. at 1292-93. The police followed and eventually apprehended these four. Id. The police found evidence in the car of the bank robbery and also found " $5,142.10 in Mr. Thomas's pockets, including ten 'bait bills'" stolen in the robbery. Id. at 1293. We concluded based on this record that there was insufficient evidence to convict Summers of conspiring to commit the bank robbery. Id. at 1292.
Equating Summers with Dejuan's case ignores many extenuating circumstances present in Summers but absent here. In Summers, the government's claim that a third person besides Mohammad and Frazier participated in the robbery relied mainly on one eyewitness who claimed that the gold Acura the robbers escaped in was already moving when the two robbers got into opposite sides of the car. Id. at 1296. In his initial statement to police, the witness had not mentioned that the car was moving when the two robbers reached it, explaining at trial that he later realized that was what he had seen. (Summers R., Tr. Trans. vol. 1, at 169-70.) He did not see a third person in the car and testified that one of the robbers had quickly entered the driver's side of the moving, two-door car. ( Id. at 161, 169.) In fact, his revised recollection (that perhaps there had been a third person) was based principally on a contention that the car " left very fast" for two people to have entered it, started it, and then departed. ( See id. at 161.) For Summers to be the getaway driver--the government's theory against him at trial--the bank robber entering the driver's side door of the moving car ...