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United States v. Clarence Bernard Buck

United States Court of Appeals, Fifth Circuit

February 1, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
CLARENCE BERNARD BUCK, also known as BB; KENDAL ALLEN, Defendants-Appellants

         Appeals from the United States District Court for the Southern District of Texas

          Before WIENER, CLEMENT, and HIGGINSON, Circuit Judges.

          WIENER, Circuit Judge

         Defendants-Appellants Clarence Bernard Buck and Kendall Allen (collectively "defendants") were charged with various crimes, including robbery in violation of the Hobbs Act, 18 U.S.C. § 1951(a). They proceeded to jury trial, but three days into it the district court granted their motions for a mistrial. At the conclusion of the second jury trial, Buck and Allen were convicted on all counts. Buck was sentenced to 1, 846 months of imprisonment, and Allen was sentenced to 1, 435 months. They now appeal, contending that the retrial of their case violated their constitutional rights and that the classification of Hobbs Act robbery as a crime of violence was error. In addition, Buck asserts that the Hobbs Act robbery jury instruction was flawed, the abduction enhancement to his sentence was error, and his restitution obligation should be shared with others; and Allen appeals his 119-year sentence as a violation of the Eighth Amendment and the introduction of his statements to a government witness as reversible error. We affirm.

         I. FACTS AND PROCEEDINGS

         A. Facts

         Buck and Allen, along with other individuals, were accused of participated in armed robberies of various T-Mobile stores and a flea market jewelry store in the Houston area between November 2012 and July 2013. The robberies followed similar patterns, including forcing store employees from the front of the store to the back, where cellular phones were stored. All of the robberies in question included defendants or their co-conspirators brandishing firearms during the commission of those crimes.

         B. Procedure

         In March 2015, defendants entered pleas of not guilty and proceeded to trial by jury. Three days into the trial, it came to light that the government had not turned over all of the required discovery materials, including witness statements, a police interview with Buck, and two police lineups. The district court held a hearing in which it admonished the government for its failure to turn over such materials. The court then granted defendants' motions for mistrial, but it denied their motions for dismissal of the case with prejudice.

         A second jury trial took place some five months later, in August 2015. Between the first and second trials, defendants again filed motions to dismiss the case with prejudice, which the court denied in a summary order. The jury convicted Buck and Allen of conspiracy to interfere with commerce by robbery, in violation of the Hobbs Act, 18 U.S.C. § 1951(a). Buck was also convicted of (1) seven counts of committing, or aiding and abetting, Hobbs Act robbery, (2) seven counts of using and carrying, or aiding and abetting the use of and carrying of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A), and (3) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Allen was convicted of six counts of Hobbs Act robbery and six counts of using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A).

         The district court sentenced Buck to concurrent sentences of 240 months of imprisonment on the robbery counts; a consecutive 22-month term on the charge of being a felon in possession of a firearm; a mandatory consecutive 84-month term of imprisonment on one firearm count; and five additional consecutive terms of 300 months of imprisonment on the remaining firearm counts, for a total of 1, 846 months of imprisonment. The court sentenced Allen to 151 months for the robberies; a mandatory consecutive term of 84 months; and four additional consecutive terms of 300 months of imprisonment on the firearms counts for a total of 1, 435 months of imprisonment. Both defendants appeal their convictions and sentences.

         II. THE SECOND TRIAL

         Defendants challenge the second jury trial for different reasons. Allen insists that the second trial amounts to double jeopardy and that his constitutional rights under Brady v. Maryland[1] were violated. Buck asserts that the district court should have sanctioned the government for discovery violations by dismissing the case against him with prejudice.

         A. Standard of Review

         The Fifth Amendment protects individuals from "repeated prosecutions for the same offense."[2] We review challenges to the prohibition against double jeopardy de novo.[3] We review sanctions imposed by the district court for discovery-related violations for abuse of discretion.[4] We only reverse the trial court's factual findings related to double jeopardy challenges and discovery-related violations if they are clearly erroneous.[5]

         B. Analysis

         The government may not use a jury as a focus group; neither may it use a jury trial as a discovery tool.[6] When a trial is terminated over defense objection, retrial is prohibited absent "manifest necessity."[7] Retrial of a case following a motion for mistrial by the defense is allowed, however, unless government conduct that was "intended to 'goad' the [defense] into moving for a mistrial" prompted the defense's motion.[8]

         In this case, it was not until the third day of the initial trial that it came to light that the government had failed to turn over some discovery materials, including various interviews with witnesses - including Buck - and records of police line-ups. When that matter was brought to the attention of the district court, it held a hearing and granted defendants' motion for mistrial, but denied defendants' motions for dismissal of the case with prejudice.

         1. Allen's Claim of Double Jeopardy

         Allen contends that the government "goaded" him into seeking a mistrial because the trial was "not going well" for the government and defense counsel had pointed out weaknesses in the government's case. "Goading" is narrowly defined, and "[g]ross negligence by the prosecutor, or even intentional conduct that seriously prejudices the defense, is insufficient" to be characterized as "goading."[9] "Instead, there must be 'intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause.'"[10]

         The government counters that it had no prior knowledge of the missing items of discovery. It says that it asked the state agencies that initially investigated defendants' crimes if they had turned over "everything" in their possession, to which the state agencies responded affirmatively. The government also relies on its open-file discovery policy and on the fact that it continued to produce materials promptly as it received them.

         It is true that in the first trial, the government heard defendants' opening statements and their cross-examination of government witnesses, and had the opportunity to gauge jury reactions to their own witnesses. Regardless, the "objective facts and circumstances" in this case do not suggest that the prosecutors engaged in "conduct . . . intended to provoke the defendant[s] into moving for a mistrial."[11] We are satisfied that the government did not goad Allen into seeking a mistrial and that his double jeopardy rights thus were not violated.

         2. Allen's Brady Claim

         Allen also urges that the government failed to meet its constitutional obligations imposed by Brady.[12] Under Brady, "the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in this case, including the police."[13] A Brady violation requires that the evidence withheld by the government be either exculpatory or impeaching, and that prejudice ensued.[14] Allen has not identified any exculpatory or impeaching evidence that was withheld by the prosecution. The retrial of the criminal case against Allen did not violate his constitutional rights under Brady and its progeny.

         3. Buck's Claims

         Buck acknowledges that his being retried is not barred by the double jeopardy clause. Instead, Buck contends that, given the concerns underlying double jeopardy and the rules of procedure, [15] the district court erred by allowing the retrial. We have held that, with regard to the imposition of sanctions for discovery violations, district courts should consider: "1) the reasons why disclosure was not made; 2) the amount of prejudice to the opposing party; 3) the feasibility of curing such prejudice with a continuance of the trial; and 4) any other relevant circumstances."[16]

         As to the first factor, the government again asserts that the failure to disclose the evidence in question was not intentional. Generally, a district court will not impose severe sanctions in the absence of bad faith.[17] As discussed above, nothing in the record suggests that the government's failure to disclose evidence was intentional. Thus, this factor weighs against dismissal with prejudice as a sanction.

         As to the second factor, Buck - like Allen - argues that by hearing his opening statement and his defense theory in the first trial, the government was given a significant advantage. However, there is no evidence that defendants were prejudiced by the first trial. Thus, this factor is neutral.

         The third factor weighs against dismissal with prejudice as a sanction because Buck had almost five months to prepare a new strategy based on the new discovery.

         As to the fourth factor, Buck does not address other relevant circumstances, but relies exclusively on policy arguments that his case should be dismissed with prejudice as a sanction for the government's discovery violations. Even if we were persuaded that such policy arguments weigh in favor of dismissal, the district court did not abuse its discretion in refusing to dismiss the case based on the government's discovery violations.

         III. HOBBS ACT ROBBERY AS A CRIME OF VIOLENCE

         Defendants insist that their Hobbs Act robbery convictions do not qualify as crimes of violence under 18 U.S.C. § 924(c)(3)(A) and that they cannot qualify under § 924(c)(3)(B) because the clause is vague and crediting it would violate due process.

         A. Standard of Review

         Because this challenge is asserted for the first time on appeal, we review it for plain error.[18]

         B. Analysis

         Section 924(c) punishes "any person who, during and in relation to any crime of violence uses or carries a firearm. . . ."[19] When the firearm is brandished during and in relation to any crime of violence the statutory minimum becomes seven years' imprisonment.[20]

         Section 924(c) contains two definitions of a crime of violence. Under § 924(c)(3)(A), a crime of violence is a felony that "has an element the use, attempted use, or threatened use of physical force against the person or property of another."[21] Under § 924(c)(3)(B), which is referred to as the "residual clause, " a crime of violence is a felony that "by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."[22]

         Whether a particular offense is a crime of violence is a question of law for the court to resolve.[23] The Supreme Court applies a categorical approach, looking only to the statutory definitions - i.e., the elements - of a defendant's offense, and not to the particular facts underlying the convictions.[24] The Hobbs Act defines robbery, in pertinent part, as "the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property."[25] Allen argues[26] that because an individual could be convicted under the Hobbs Act for nothing more than threatening some future injury to the property of a person who is not present, this cannot be a crime of violence under the statute.[27]

         In United States v. Hill, the Second Circuit concluded that the Hobbs Act's reference to actual or threatened force or violence "would appear, self-evidently, to satisfy" the standard needed for a crime of violence under § 924(c)(3)(A).[28] In addition, the Third, Eighth, and Eleventh Circuits have held that the Hobbs Act definition of robbery describes a crime of violence under § 924(c)(3)(A), and the Ninth Circuit has reached the same conclusion in an unpublished opinion.[29] It was not error - plain or otherwise - for the district court to classify a Hobbs Act robbery as a crime of violence.

         IV. HOBBS ACT ROBBERY JURY INSTRUCTION

         Buck also objects to the district court's use of the Fifth Circuit pattern jury instruction[30] on the Hobbs Act to the extent that it does not require the jury to find that he had a culpable mental state regarding the effect of his conduct on interstate commerce.

         A. Standard of Review

         We review the use of a particular jury instruction for abuse of discretion.[31] We ask "whether the instruction, taken as a whole, is a correct statement of law and whether it clearly instructs jurors as to the principle of the law ...


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