Decided: January 3, 2013
This case involved an appeal brought by six defendants (collectively, the “Defendants”) convicted of various counts related to their participation in a conspiracy to steal cocaine from the stash house of a drug cartel. Unbeknownst to the Defendants, their planned robbery was orchestrated by undercover law enforcement officers, and they were arrested just before they could carry out the robbery. When the Defendants were arrested, the law enforcement officers recovered five loaded firearms from the Defendants’ van and one of the Defendants waived his Miranda rights and confessed to his involvement in the conspiracy to rob a drug trafficker of cocaine and money.
The Fourth Circuit first addressed “whether the district court erred in denying the five non-confessing defendants’ motions to sever and admitting the redacted confession of their non-testifying codefendant . . . in the resulting joint trial.” Reviewing the decision to deny the motion to sever for abuse of discretion, the court noted that while the general rule calls for defendants to be “indicted and charged together if they are alleged to have participated in the same act or transaction,” there are “some situations [in which] the risk of prejudice is so high as to require a separate trial.” The court acknowledged that the non-confessing defendants’ situation, “where the out-of-court confession of a non-testifying codefendant … inculpates one or more of the other defendants” could be one such situation in which a separate trial is necessary. However, the court relied on its decision in United States v. Akinkoye in which it “held admissible a codefendant’s redacted statement that referred to the existence of another person through neutral phrases” and concluded that “the obfuscation of the names of other defendants in the version of [the codefendant’s] confession admitted at trial was not obvious.” The court was convinced that because the redacted statement was written in third person in grammatically correct sentences and “referred generally and without facial incrimination to some number of individuals who could, or could not, be the other defendants,” it “did not implicate any one defendant in particular, nor did it leave the jury to fill in any obvious blanks.” Therefore, the court determined that the redacted confession was properly admitted against the Defendants with a limiting instruction and affirmed the district court’s denial of the non-confessing defendants’ motion to sever.
Next, the court looked to determine “whether factual impossibility is a defense to the crime of conspiracy.” The Defendants argued that because “the stash house, drugs, and entire factual premise of the robbery were the fictional creation of law enforcement officers,” they should be able to assert factual impossibility as a defense to their conspiracy charges. The court rejected the Defendants’ argument and “conclude[ed] that factual impossibility is not a defense to the crime of conspiracy” after finding that “[i]t is well-established that the inchoate crime of conspiracy punishes the agreement to commit an unlawful act, not the completion of the act itself.” Accordingly, the court “reject[ed] defendants’ arguments that factual impossibility of the robbery they conspired to commit render[ed] their convictions legally insupportable.”
The court also reviewed the sufficiency of the evidence in the case and found “that the evidence was more than sufficient to sustain each conviction on these particular facts.” The “Defendants argue[d] the evidence established neither the amount of cocaine defendants conspired to steal nor the possession of firearms.” The Defendants relied on the Fourth Circuit’s decision in United States v. Hickman, which required “evidence of the amount of drugs the conspiracy intended to possess and distribute.” The court distinguished the present case from Hickman and determined that “the evidence introduced was replete with references to the amount of cocaine the defendants conspired to steal.” The court additionally concluded that “there was a wealth of evidence that the defendants planned to possess firearms while committing the robbery, and did possess them in furtherance of the conspiracy.” Therefore, reviewing the sufficiency of the evidence under a substantial evidence standard, the court found that the evidence introduced to prove each element of the crimes at issue “support[ed] the jury’s verdict … beyond a reasonable doubt.”
Next, the court addressed the Defendants’ “challenge [to] the district court’s decision to permit Detective Snyder to testify at trial regarding conversations he had with [one of the Defendants] while setting up the sting.” The Defendants argued that the detective’s testimony amounted to “narrative gloss” testimony and was improper under Federal Rule of Evidence 701 that governs lay witness opinion testimony. The court reviewed the district court’s admission of this testimonial evidence for abuse of discretion and found that “each of Rule 701’s requirements [were] satisfied here.” Specifically, the court found that it was critical that the detective “had been a participant in each of the conversations about which he testified” such that his testimony “was rationally based on his perception.” The court also found that the detective’s testimony “easily” met Rule 701’s third requirement because “[t]he kinds of questions asked and answers elicited went directly to [the detective’s] personal knowledge … rather than calling upon any specialized expertise he might have.” Accordingly, the court concluded that the testimony “was rationally based on [the detective’s] own personal perception” and was properly admitted.
Finally, the court addressed an argument made by Phun, one of the Defendants, “that the correction of an error in [Phun’s] verdict form during the jury’s deliberations constituted reversible error.” The court noted that the record was very unclear about the circumstances surrounding the alleged improper influence, and it also expressed concerns with the methods used by the district court in “correcting a substantial error on the jury form,” calling the methods “less than ideal.” However, despite these concerns, the court found that the “Defendants fail to identify and we fail to see how any of these events could have improperly influenced the jury.” Therefore, it concluded that “even if some improper influence unclear from the record constituted error, it was harmless,” and it found “no reason to overturn any of the defendants’ convictions” based on such error.
Based on the foregoing, the court affirmed the district court’s judgment.