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United States v. Jordan

United States Court of Appeals, Fifth Circuit

December 13, 2019


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

          Before ELROD, WILLETT, and OLDHAM, Circuit Judges.


         Walter Freeman Jordan, III and Johnathon Nico Wise were found guilty, along with several co-defendants, of aiding and abetting aggravated credit union robbery in violation of 18 U.S.C. § 2113(a), (d)(2). Jordan was additionally found guilty of aiding and abetting the brandishing of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii), (c)(2). They both appeal their convictions and sentences.

         Jordan argues that (1) there was insufficient evidence to sustain his conviction; (2) the district court erred in permitting testimony that identified Jordan and Wise as brothers; and (3) the district court erred in permitting co-defendants' testimony regarding their own guilty pleas. Wise similarly argues that (4) there was insufficient evidence to support his conviction; and (5) the district court erred in permitting testimony that identified Jordan and Wise as brothers. He additionally argues that (6) the district court plainly erred in failing to give a Rosemond instruction; (7) the district court clearly erred in applying a sentencing enhancement for the use of a firearm; and (8) the district court clearly erred in denying a Guidelines reduction for Wise's allegedly minimal role in the robbery.

         We AFFIRM the convictions and sentences.

         I. Background

         Because Jordan and Wise both challenge the sufficiency of the evidence, it's necessary for us to dive into the record to understand what evidence was before the jury. We read the facts in the light most favorable to the jury's verdict.[1]

         A. The Robbery

         On July 24, 2017, the Houston Police Department was investigating Walter Jordan and monitoring a phone number-ending in 6601-attributed to him. By following cell tower signals, [2] officers observed the phone move from the Third Ward of Houston to the Cinco Ranch area. At the same time, surveilling officers followed Jordan as he drove a maroon Volkswagen Jetta from the Third Ward of Houston to the Cinco Ranch area. Both the phone and Jordan then traveled back to the Third Ward, at which point officers saw Jordan exit the Jetta.

         The next morning, officers observed the phone move from its usual nighttime location earlier than usual, prompting them to begin surveillance on Greenmont Street. There, they identified a silver Chevrolet Malibu, black Toyota Tundra, silver Nissan Rogue, and the maroon Jetta that Jordan had been driving the day before. Jordan, Wise, and others moved between the vehicles over the course of a couple of hours, and eventually, all four cars filed out in formation. As the four vehicles pulled off of Greenmont, heading west, officers followed in unmarked vehicles.

         The vehicles drove to the Cinco Ranch area-the same area that Jordan had traveled to the day before. The four cars under surveillance then "scrambled." The fleet of about twenty officers initially followed the cars moving in various directions but then set up posts at different locations around the area. From their respective posts, the officers were able to continue observing the vehicles' movements. The 6601 phone was in the Cinco Ranch area at this time as well, with the signal bouncing between two nearby towers.

         Officers noticed that the four cars seemed to be focused on First Community Credit Union. Each car spent about fifty minutes either parked- facing the credit union-or circling various streets that ultimately led back to the credit union. Eventually, the Tundra pulled into a parking spot in front of the credit union, and three men exited the truck and ran inside. A fourth man followed shortly after. Because the men's faces and hands were covered, officers were unable to physically identify them.

         Once inside the credit union, two of the men jumped over the teller counter, demanded that the tellers get on the ground, and asked where the money was kept. One teller was then instructed to get back up and unlock her drawer; the robbers proceeded to go through the tellers' drawers, ultimately collecting money from two, including "bait bills."[3] The robbers then attempted to get into the vault, striking one bank employee when he failed to open it. When a teller informed them that she didn't know the vault combination either, one of the robbers lifted his shirt, revealed the gun in his waistband, and instructed her to get back on the ground. Shortly after, another person came into the credit union and shouted, "The cops are down the street." The robbers jumped back over the teller counter and fled the credit union. On their way out, one of the robbers pointed a gun at a customer attempting to enter the credit union, prompting the customer to turn around and return to his car.

         After the robbers returned to the Tundra and began driving away, the Rogue, Jetta, and Malibu-which had been parked in various spots near the credit union-followed. Officers in marked vehicles followed the Tundra, while officers in unmarked vehicles stopped the others. Deandre Santee and Wise occupied the Rogue, Daryl Anderson occupied the Jetta, and Jaylen Loring occupied the Malibu. All four were detained.

         Meanwhile, the officers' pursuit of the Tundra and its four occupants continued. The cars flew down the highway at speeds around 130 miles per hour until the Tundra exited. After it was off the highway, the Tundra made numerous turns, flew through red lights, and drove into oncoming traffic, eventually hitting a dead end. With nowhere left to turn, the Tundra's driver slammed on his breaks, and the passengers jumped out of the still-moving vehicle and began to flee on foot. One passenger-Raymond Pace-was not fast enough to get out of the Tundra's way and was crushed between the front bumper and a fence; officers called for medical assistance and placed Pace under arrest. The three other passengers continued running toward an apartment complex at the fence line.

         Officers learned that Jordan's brother, Terrance, [4] lived in the apartment complex and promptly obtained a search warrant for his unit. With resistance, officers were able to make their way into the apartment.[5] Inside, they noticed still-wet hoodies in the washing machine that had the same markings as the ones worn by the robbers and a shoebox with a gun and pair of gloves that matched the gloves worn by the robbers. Outside of the unit, but still in the apartment complex, officers located a backpack on a small balcony between the second and third floors, which contained hoodies and gloves that matched the ones worn by the robbers and a pillowcase with cash, including the credit union's bait bills. Back at the Tundra, officers catalogued, among other things, gloves and a pistol found underneath the front passenger seat. They also retrieved a phone off of Pace that matched the 6601 number affiliated with Jordan, and another three phones were retrieved from inside the Rogue, one of which matched another phone number affiliated with Jordan. Phone records later confirmed that these phones were engaged in multiple calls with one another throughout the robbery.

         B. The Trial Testimony

         Anderson and Loring, two of the individuals arrested in companion cars, testified against Jordan and Wise at trial. During direct examination, the prosecutor elicited testimony that both had pled guilty to aiding and abetting the robbery of the First Community Credit Union. They both also acknowledged that their goal in testifying was to reduce their sentences.

         In his testimony, Anderson acknowledged his past convictions for giving a false name to a police officer, possessing a controlled substance, and displaying a false license plate. He then went on to explain his relationship with Jordan. Anderson told the jury that he had known Jordan most of his life and that, on the morning of the robbery, Jordan had enlisted his help in being a lookout during the robbery. At first, Anderson refused and left Greenmont Street with his "good friend," Santee. But then Jordan called him and begged for his help, promising that Anderson's only role would just be as "some extra eyes." Anderson agreed to be a lookout, and Jordan filled him in on the details. Santee and Anderson then sat in Santee's Rogue, and Santee asked what he was supposed to do. Anderson didn't give Santee any specific instructions but told him just to follow. Minutes later, Wise, who had been in the Jetta, got into the Rogue with Santee. Anderson got into the Jetta. Jordan entered the driver's seat of the Tundra. And the cars set off for the credit union. En route, those in the Tundra, Jetta, and Rogue engaged in a three-way call. The purpose of the call wasn't to chat, but to keep one another informed if any cops came into view or trouble arose. The driver of the Malibu, a woman who Anderson didn't know, joined the call as well; she let them know the credit union was all clear. Anderson testified that the Tundra then parked in front of the credit union, those in the Tundra went into the bank for ten to fifteen minutes, and then they came back out and fled. Anderson attempted to follow them, but was soon cut off by unmarked police vehicles and placed under arrest.

         Loring testified that she met Jordan, also known as Wacko, on Instagram about a week before the robbery when he messaged her about the opportunity to make quick money. They met a couple of times over that week, and Jordan filled her in on his plan. Loring testified that Jordan was the driver of the Tundra on the day of the robbery and that Jordan called her during their drive to the credit union to say, "Follow us," which she did in her Malibu. She continued to hear other voices during the drive, as though the phone was on speaker, but no one was speaking directly to those on the phone call. The only voice she recognized was Jordan's. At his direction, Loring went into the bank to ensure security wasn't inside-it wasn't. The Tundra then pulled into the parking lot, and the to-be robbers went inside. Loring remained on the phone throughout. She then saw the men leave the credit union, get back in the Tundra, and pull out. Loring attempted to follow, but she was quickly pulled over and arrested.

         In addition to Loring and Anderson, numerous officers testified. Among them was Sergeant David Helms, who provided testimony regarding the evidence collected at the scene, forensic testing, and the relationship of the defendants. Specifically, he testified, over defense counsel's objections, that Wise and Jordan were brothers. During cross examination, defense counsel confirmed that Sergeant Helms acquired this knowledge during the course of the investigation and that neither Jordan nor Wise "tr[ied] to hide it from [him]."

         C. The Verdict and Sentence

         The defense moved for judgment of acquittal at the close of the Government's case-in-chief, which the district court denied, and the case was left with the jury. The jury found that Jordan and Wise were guilty of aiding and abetting aggravated credit union robbery, in violation of 18 U.S.C. § 2113(a), (d)(2). It additionally found Jordan guilty of aiding and abetting the brandishing of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii), (c)(2).

         Jordan and Wise were later sentenced by the district court, with their offense levels calculated using the 2016 Guidelines Manual. The district court sentenced Jordan to 262 months' imprisonment on Count One and 84 months' on Count Two, to run consecutively for a total of 326 months' incarceration.

         Wise's base offense level was 20. Among other enhancements, he received a 6-level increase because a firearm was used in the commission of the robbery. Wise objected to this enhancement and others and also argued that his offense level should be reduced because he played a minimal role in the crime. The district court overruled Wise's objection to the use-of-a-firearm enhancement and denied his request for a role-reduction. Over defense counsel's request for a punishment of 60 months' imprisonment, the district court imposed a term of 121 months'.

         Jordan and Wise now appeal.

         II. Discussion

         A. Jordan's Claims on Appeal

         1. The evidence was sufficient to support the jury's finding of guilt against Jordan.

         Issues regarding sufficiency of the evidence are largely fact-based questions that we review de novo.[6] And we "must affirm a conviction if, after viewing the evidence and all reasonable inferences 'in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'"[7] Importantly, this means that our review is "limited to whether the jury's verdict was reasonable, not whether we believe it to be correct."[8]

         Jordan argues that the evidence is insufficient to support a finding of guilt because the Government's case impermissibly "pile[d] inference upon inference" and there was no DNA or fingerprint evidence to link Jordan to the crimes.[9] His argument is unavailing. As the Government notes, the testimony of Anderson and Loring alone is sufficient to warrant a guilty verdict against Jordan on the first count-aiding and abetting robbery.[10] Anderson testified that Jordan enlisted his help in the robbery, was the driver of the Tundra, and was on the phone with him throughout the robbery. Loring also testified that Jordan enlisted her help in the robbery, was the driver of the Tundra, and was on the phone with her throughout the robbery. This testimony is substantial enough, on their face, to demonstrate that Jordan was involved in the robbery of the credit union.

         Jordan argues that Anderson and Loring's testimony cannot support his conviction because they are incredible.[11] However, "[t]he jury retains the sole authority to weigh any conflicting evidence and to evaluate the credibility of witnesses."[12] And, despite Jordan's assertion in his reply brief, none of Loring or Anderson's statements were so outside the realm of possibility that no juror could have believed them.[13] Jordan's counsel had every opportunity to impeach both Anderson and Loring for their previous acts of dishonesty and any inconsistencies in their testimony, and the jury independently weighed that testimony and determined that the evidence was sufficient to support a finding of guilt. We do not second-guess such findings.[14]

         And even if Anderson and Loring's testimony wasn't credible, the other evidence presented at trial is sufficient to support a guilty verdict. Officers observed Jordan drive to and from the location of the robbery the day before the robbery in a vehicle that was used as a lookout during the robbery; a phone associated with Jordan moved in the same direction as Jordan the day before the robbery, and then that phone was used during the robbery and found on a co-defendant; and the bait bills and clothing worn by the robbers were found in or around Jordan's brother's apartment complex immediately after the robbery. From this evidence alone, a reasonable juror could conclude that Jordan participated in the robbery.[15]

         As for the second count-aiding and abetting the brandishing of a firearm during and in relation to a crime of violence-the evidence also supports conviction. Anderson and Loring's testimony demonstrates that Jordan played a leadership role in organizing the robbery. Witnesses testified that a gun was brandished at a teller and pointed at a customer. A pistol was found in the Tundra driven by Jordan. And another gun was found in a shoebox at Jordan's brother's apartment under gloves resembling those used in the robbery. From this evidence, a reasonable jury could, and did, conclude that Jordan was aware that a firearm would be brandished in the commission of the robbery.

         Jordan argues that the evidence is insufficient to link him to the crime because the pistol in the car was not loaded and his fingerprints weren't on the weapon.[16] However, whether Jordan ever held the pistol is of no moment because "[w]hover commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal."[17] And the jury made a specific finding that Jordan had advance knowledge that a firearm would be used by someone during the crime. Given Jordan's role in the robbery, that a firearm actually was brandished in the credit union and pointed at a customer, and that Jordan was driving the car that housed a pistol, the jury's guilty verdict was reasonable.

         2. If the district court erred in admitting testimony that Jordan and Wise are brothers, the error was harmless.

         We review evidentiary rulings for an abuse of discretion, subject to the harmless error rule.[18] An abuse of discretion occurs when a ruling is grounded in a legal error or based on a clearly erroneous analysis of the evidence.[19] But even if such an error occurs, we will not reverse if the guilty verdict was unattributable to the error-the harmless error rule.[20]

         Jordan argues that the district court erred in admitting Officer Helms' testimony regarding his relationship to Wise because the court lacked proper foundation and the testimony was more prejudicial than probative. The Government, however, did not respond to these arguments other than to say, "No error occurred, alternatively, any error was harmless."[21] Failing to provide any reasoning or law to support its statement that "[n]o error occurred," the Government has abandoned this argument.[22]

         Though the Government has forfeited its argument as to whether an error occurred, it has not waived its argument as to whether the error was harmless. As the Government notes, the testimony was harmless because it did not have a "substantial and injurious effect or influence in determining the jury's verdict."[23] Before Officer Helms' testimony was presented, the jury had already heard testimony from two co-defendants who described Jordan's involvement in the robbery and from other officers who had traced Jordan's phone along the robbery route and described the clothing and bait bills found at the apartment complex of Jordan's other brother, Terrance. Because this substantial evidence supports the conclusion that Jordan was guilty of aiding and abetting robbery, during which a firearm was used-absent information about a relationship between Jordan and Wise-any error was harmless.[24]

         3. The district court did not plainly err in admitting evidence that Loring and Anderson pleaded guilty.

         Evidentiary rulings are normally reviewed for abuse of discretion, subject to the harmless error rule.[25] But Jordan did not object to the admission of testimony regarding Loring and Anderson's guilty pleas in the district court, so we instead review the issue for plain error to determine whether the testimony "seriously affected [Jordan's] substantial rights."[26] To make this determination, we should consider (1) whether a limiting instruction was given; (2) whether there was a proper evidentiary purpose for introduction of the guilty plea; (3) whether there was an improper emphasis on or use of the plea as substantive evidence; and (4) whether the introduction was invited by defense counsel.[27]

         First, the jury was specifically instructed that "[t]he fact that an accomplice has entered a plea of guilty to the offense charged is not evidence of guilt of any other person." Second, the introduction of the guilty pleas served a proper evidentiary purpose: it "'blunt[ed] the sword' of anticipated impeachment" by revealing the witnesses' "blemished reputation[s]" before the defense could do so, avoiding the appearance of "an intent to conceal."[28] Third, the prosecution did not linger on the fact that the witnesses had pled guilty, but it merely acknowledged the pleas, and then revealed to the jury that both witnesses were testifying for the purpose of receiving a reduced sentence. Fourth, defense counsel cross-examined both Loring and Anderson about their guilty pleas and sought to impeach them for their cooperation with the Government.[29] We have held that "a defendant will not be heard to complain of [the] admission [of another's guilty plea] when he . . . attempts to exploit the evidence by frequent, pointed, and direct references to the [codefendant's] guilty plea."[30] Here, the defense did just that.

         Because each factor weighs against a finding that Jordan's rights were seriously affected, the district court did not ...

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