United States v. LaFawn Bobbitt ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4489
LAFAWN DEWAYNE BOBBITT, a/k/a
Mandingo, a/k/a Dingo,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 98-4490
RASHI TAQUE JONES, a/k/a Ra, a/k/a
Allah R. Shabazz,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-97-169)
Argued: October 29, 1999
Decided: January 31, 2000
Before WILKINS and WILLIAMS, Circuit Judges, and
Gerald Bruce LEE, United States District Judge for the
Eastern District of Virginia, sitting by designation.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Amy Milton Curtis, BOWEN, BRYANT, CHAMPLIN &
CARR, Richmond, Virginia; Steven D. Benjamin, BENJAMIN &
DESPORTES, P.C., Richmond, Virginia, for Appellants. Kenneth E.
Melson, Assistant United States Attorney, Steven John Mulroy, Spe-
cial Assistant United States Attorney, Alexandria, Virginia, for
Appellee. ON BRIEF: Betty Layne DesPortes, BENJAMIN &
DESPORTES, P.C., Richmond, Virginia, for Appellants. Helen F.
Fahey, United States Attorney, Alexandria, Virginia; Nicholas Alti-
mari, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Lafawn Dewayne Bobbitt and Rashi Taque Jones appeal their con-
victions on numerous charges arising from the robbery of a bank.
Finding no error, we affirm.
I.
The facts, viewed in the light most favorable to the Government,
see Glasser v. United States, 315 U.S. 60, 80 (1942), are as follows.
On January 30, 1997, Bobbitt and Jones entered a NationsBank in
Richmond, Virginia with the intent to rob it. Appellants had with
them an AR-15 semi-automatic assault rifle and a TEC-9 semi-
automatic pistol. Bobbitt opened fire without warning, killing one
employee and wounding another and a customer. Bobbitt also
exchanged fire with a security guard, wounding him. As they were
leaving the bank with over $10,000, both men exchanged fire with a
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police officer who responded to the scene after hearing gunshots; the
police officer was unhurt.
Appellants ran from the bank and through a cemetery. A witness
saw a cloud of red mist in the cemetery, consistent with the explosion
of a dye pack, a security device used by banks that is activated when
stolen money is removed from the bank, causing an emission of red
dye that stains all with which it comes into contact. Police dogs were
used to trace the men to a house, which was later determined to have
been burglarized.
A search of the bank, cemetery, and house revealed, among other
items, guns, ammunition, cans of lighter fluid, and a tape recorder
containing a cassette tape. Bobbitt's fingerprints were found on the
cassette tape and on one of the cans of lighter fluid, which had been
purchased at a store near Bobbitt's home. A hat similar to one that
Jones had been known to wear was found in the cemetery near other
evidence from the crime. Clothing and other items associated with the
bank robbery and with Bobbitt and Jones were found in the house.
DNA analysis performed on stains from the clothing linked the items
to Bobbitt and Jones. On the day of the robbery, Bobbitt and Jones
were observed wearing clothing resembling that stolen from the bur-
glarized house.
Soon after the robbery, Bobbitt and Jones were seen entering a
room in which two coconspirators, Jermaine Sims and Christopher
Sellers, had a large amount of cash spread out on a bed. Later that
day, Sims' girlfriend was asked to carry a bag for Sims and Sellers
as she accompanied them to a restaurant. She saw money in the bag
and was told that it was $10,000 that Sims, Sellers, Bobbitt, and Jones
had been saving.
Approximately a week and a half after the robbery, Jones
announced that he needed some money, went to a house, and returned
with a quantity of wet currency that had a pink tint. Jones was also
overheard having a conversation regarding laundering money through
drug dealing, and other evidence suggested that Jones was involved
in drug dealing.
Appellants were arrested and charged with bank robbery, see 18
U.S.C.A. § 2113(a), (d), (e) (West Supp. 1999), use of a firearm in
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relation to a violent crime, see 18 U.S.C.§ 924(c)(1) (1994), conspir-
acy to commit those offenses, see 18 U.S.C.A. § 371 (West Supp.
1999), and murder, see 18 U.S.C.A. § 1111 (West Supp. 1999). Addi-
tionally, Bobbitt was charged with receiving a firearm while under
indictment, see 18 U.S.C.A. § 922(n) (West Supp. 1999), and Jones
was charged with being a felon in possession of a firearm, see 18
U.S.C.A. § 922(g)(1) (West Supp. 1999).
At trial, the Government introduced eyewitness testimony and the
video surveillance tape from the bank, both of which indicated that
one of the robbers was taller than the other. A photogrammetry expert
determined, based on the surveillance tape, that one of the men was
between 5'11" and 6'3" and the other was between 6'1" and 6'6";
Jones is 5'11-1/2" and Bobbitt is 6'5-1/2". The other two coconspira-
tors, Sims and Sellers, are both too short to have been one of the gun-
men. The Government also introduced the testimony of two fellow
inmates of Jones. These witnesses testified that Jones had admitted
taking part in the robbery and had implicated Bobbitt in the robbery
as well.
The evidence at trial also indicated that Appellants engaged in sub-
stantial planning and preparation for the robbery. Prior to the robbery,
Bobbitt asked an associate, Reginald Pinkston, to purchase a firearm
on his behalf. Bobbitt told Pinkston that Bobbitt intended to rob a
bank and would make the weapon untraceable. Although Pinkston
was arrested before he could complete the purchase, Bobbitt's brother
purchased a weapon for Bobbitt.
Sims' girlfriend testified that she overheard Sims, Sellers, and
Appellants talking about buying some weapons in advance of the rob-
bery. Sims did in fact purchase the AR-15 semi-automatic assault rifle
and the TEC-9 semi-automatic pistol that were used in the robbery.
Jones was seen a day or two before the robbery in possession of a
weapon that resembled the TEC-9.
On a Friday morning during the trial, defense counsel became
aware that one of Jones' lawyers was suffering from some incapacity,
although they were unaware of the cause. Concerned that the attorney
was incapable of continuing, counsel requested that the court recess
early. The court recessed for the weekend, explaining to the jury that
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one of the defense attorneys had become ill. Before resuming on
Monday, the court explained to the jury that the attorney had taken
medication to alleviate pain caused by dental work, but that counsel's
doctor had assured the court that counsel was no longer incapacitated.
The court then asked the jury whether any member would be pre-
vented from being fair and impartial as a result of the unscheduled
recess and learning that counsel had a health problem. No juror
responded affirmatively.
Appellants were convicted of all charges and now appeal. We
address their contentions seriatim.
II.
Jones first maintains that the district court erred in denying his
motions to sever his trial from Bobbitt's and to sever the felon-in-
possession charge from the other counts. See Fed. R. Crim. P. 14. We
review both rulings for abuse of discretion, see United States v.
Spitler, 800 F.2d 1267, 1271-72 (4th Cir. 1986); United States v.
Rhodes, 32 F.3d 867, 872 (4th Cir. 1994), and find none. When ruling
on a motion to sever, a district court "must carefully weigh the possi-
ble prejudice to the accused against the often equally compelling
interests of the judicial process, which include the avoidance of need-
lessly duplicative trials involving substantially similar proof." United
States v. Jamar, 561 F.2d 1103, 1106 (4th Cir. 1977).
A.
As a general rule, defendants who are indicted together should be
tried together, especially when they have been charged with conspir-
acy. See United States v. Tipton, 90 F.3d 861, 883 (4th Cir. 1996). A
defendant is not entitled to severance simply because he may have
had a better chance of an acquittal in a separate trial; rather, the defen-
dant must show that there is "a serious risk that a joint trial would
compromise a specific trial right of one of the defendants, or prevent
the jury from making a reliable judgment about guilt or innocence."
Zafiro v. United States, 506 U.S. 534, 539-40 (1993); see United
States v. Williams, 10 F.3d 1070, 1080 (4th Cir. 1993) (stating that a
defendant moving for severance must show "that a joint trial would
be so unfairly prejudicial that a miscarriage of justice would result").
5
Jones attempts to meet his burden by arguing that because the evi-
dence against Bobbitt was stronger than that against Jones, the jury
might have used evidence against Bobbitt in its decision regarding
Jones, resulting in a "spillover" effect. This spillover argument is
without merit and we have rejected it before. See United States v.
Riley, 991 F.2d 120, 125 (4th Cir. 1993). Even if the evidence against
Bobbitt was significantly stronger, there was sufficient evidence to
sustain Jones' conviction, and the jury was adequately instructed that
it must consider each defendant and charge separately based on the
evidence applicable to each defendant. This is all that justice requires.
See Zafiro, 506 U.S. at 541; Riley, 991 F.2d at 125. Thus, we con-
clude that the district court did not abuse its discretion in denying
Jones' motion to sever his trial.
B.
We also conclude that the district court did not abuse its discretion
in denying Jones' motion to sever the felon-in-possession charge.
Jones argues that the admission of evidence that he was a convicted
felon, which is a necessary element of proof of the felon-in-
possession charge, prejudiced him by making it more likely that the
jury would convict him of the other charges. We have already decided
this issue in a case involving similar circumstances. See United States
v. Silva, 745 F.2d 840, 844 (4th Cir. 1984). In Silva, we rejected the
argument that a charge under 18 U.S.C.A. § 922 must always be sev-
ered from other counts. We noted that
[o]ne found in the unlawful possession of a firearm will
often be charged with another crime involving the use of
that firearm. Requiring two trials, one for a charge which
requires little more than proof of possession and the exis-
tence of the prior record, and one for the underlying crimi-
nal charge, would be unnecessarily redundant.
Id.1 Jones attempts to distinguish Silva on the bases that the other
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1 We also noted in Silva that "[a]ny prejudicial effect of the necessary
introduction of the defendant's past conviction can ... be avoided through
the use of a limiting instruction." Silva , 745 F.2d at 844. Here, Jones did
not request a limiting instruction and the district court did not give one.
Jones does not argue, however, that the failure to give such an instruction
was error.
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charges against him were quite serious and that no evidence of prior
convictions was introduced against Bobbitt. This attempt to distin-
guish Silva is unavailing. Offenses involving firearms are often quite
serious, a fact that could not have escaped the attention of the Silva
panel. Jones' complaint that evidence of prior convictions was not
introduced against Bobbitt is little more than a rehashing of his claim
that the difference in the strength of the evidence as to Jones and Bob-
bitt mandated severance of their trials, a claim we have already
rejected.
III.
Both Jones and Bobbitt challenge the adequacy of voir dire regard-
ing pretrial publicity. Prior to reporting for jury duty, potential jurors
were given a questionnaire that had been developed with the input of
counsel. Additionally, the court asked the entire venire a series of
questions regarding pretrial publicity. First, the court asked whether
anyone had been exposed to pretrial publicity. Of those who answered
affirmatively, the court asked whether the exposure had come from
an attempt to keep abreast of current events and whether these poten-
tial jurors had formed or expressed any opinions regarding the guilt
or innocence of Appellants. The court also asked whether those who
had been exposed to pretrial publicity had made any attempt to learn
more about the case. Appellants themselves were not permitted to ask
questions during voir dire.
Appellants maintain that this voir dire procedure was perfunctory,
thus preventing them from obtaining sufficient information regarding
whether exposure to pretrial publicity had biased potential jurors.
Consequently, they claim, it was impossible to challenge prospective
jurors for cause and to exercise peremptory strikes in an intelligent
manner.
Voir dire is important to ensure that the defendant receives a fair
trial. See, e.g., United States v. Lancaster, 96 F.3d 734, 738 (4th Cir.
1996) (en banc) (observing that "[v]oir dire plays an essential role in
guaranteeing a criminal defendant's Sixth Amendment right to an
impartial jury," in that voir dire "enabl[es] the court to select an
impartial jury and assist[s] counsel in exercising peremptory chal-
lenges" (internal quotation marks omitted) (alterations in original));
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United States v. Brown, 799 F.2d 134, 135 (4th Cir. 1986) (noting that
"[t]he essential function of voir dire is to allow for the impaneling of
a fair and impartial jury through questions which permit the intelli-
gent exercise of challenges by counsel" (internal quotation marks
omitted)). The principle governing the conduct of voir dire is that voir
dire must be "sufficient to impanel an impartial jury." United States
v. LaRouche, 896 F.2d 815, 830 (4th Cir. 1990). We allow the district
court broad discretion in conducting voir dire, since trial judges must
"`reach conclusions as to impartiality and credibility by relying on
their own evaluations of demeanor evidence and of responses to ques-
tions.'" Lancaster, 96 F.3d at 738-39 (quoting Rosales-Lopez v.
United States, 451 U.S. 182, 188 (1981) (plurality opinion)). "A dis-
trict court abuses its discretion, however, if the voir dire does not pro-
vide a reasonable assurance that prejudice would be discovered if
present." Id. at 740 (internal quotation marks omitted).
As the Supreme Court has noted, the discretion of district courts to
conduct voir dire is particularly broad in the context of pretrial public-
ity. See Mu'Min v. Virginia, 500 U.S. 415, 427 (1991); see also
United States v. Bakker, 925 F.2d 728, 733-34 (4th Cir. 1991) (allow-
ing district court broad discretion in voir dire exploring potential bias
due to pretrial publicity). We conclude that the procedure used in the
case before us was well within the broad discretion allowed the dis-
trict court. See United States v. Bailey, 112 F.3d 758, 769-70 (4th Cir.
1997) (holding that the district court did not abuse its discretion in
refusing to conduct individual voir dire concerning pretrial publicity);
United States v. ReBrook, 58 F.3d 961, 969 (4th Cir. 1995) (holding
that the district court did not err in refusing to permit counsel to par-
ticipate directly in voir dire concerning pretrial publicity); Bakker,
925 F.2d at 733-34 (concluding that the district court did not abuse
its discretion in refusing to submit defendant's written questionnaire
to potential jurors, refusing to permit counsel to participate directly
in voir dire, or refusing to question potential jurors individually); see
also Mu'Min, 500 U.S. at 431-32 (holding constitutional a state court
voir dire much like that at issue here). We therefore find this allega-
tion of error to be without merit.2
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2 Appellants' argument that the district court abused its discretion by
refusing to allow counsel to participate in voir dire by asking follow-up
8
IV.
Bobbitt asserts that the district court inadequately questioned the
jury regarding potential prejudice arising from having witnessed
defense counsel in an impaired state.3 When the jury is exposed to
potentially prejudicial information, the court must"ascertain the
extent and effect of the infection, and ... take appropriate measures to
assure a fair trial." United States v. Hankish, 502 F.2d 71, 77 (4th Cir.
1974). But, the district court need not even question jurors unless it
has first determined, in its sound discretion, that there is a "substantial
reason to fear prejudice." Id. We review for abuse of discretion the
response of the district court to the jury's exposure to potentially prej-
udicial information. See United States v. Gray , 788 F.2d 1031, 1032-
33 (4th Cir. 1986); Hankish, 502 F.2d at 77.
Bobbitt contends that the "single, leading, unspecific question"
posed by the district court was insufficient to determine whether the
jury was prejudiced by witnessing counsel's behavior. Brief of Appel-
lants at 25. We disagree. The district court found that counsel had
acted no differently than usual prior to the recess. Moreover, coun-
sel's impairment is not obvious from the record: The transcript of the
proceedings does not indicate that counsel's speech was so slurred
that it could not be understood by the witness or court reporter.
Because the district court did not find a "substantial reason to fear
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questions is also without merit. Counsel are not entitled to ask voir dire
questions, and it was not error for the district court to deny this request.
See Bakker, 925 F.2d at 734. Appellants also argue that they were preju-
diced by being forced to argue motions to strike jurors for cause in front
of the venire. The Government asserts that Appellants waived this argu-
ment by failing to request that the venire be excused, and then to chal-
lenge the panel, on this ground, when it was selected. See Pigford v.
United States, 518 F.2d 831, 834 (4th Cir. 1975) (per curiam). Even if
the issue were not waived, Appellants have the burden to prove that
jurors were in fact prejudiced, see id., which they have failed to do.
Therefore, we conclude there was no error.
3 The United States asserts that this issue was waived by failure to
object at trial. We need not address the waiver argument, since it is clear
that the district court did not abuse its discretion in declining to question
the jury at length.
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prejudice," Hankish, 502 F.2d at 77, and the record reveals none, we
conclude that it was within the discretion of the district court to
abstain entirely from questioning the jury. We hold that the district
court did all that is required and did not abuse its discretion.
V.
Jones claims that the district court erred in refusing to instruct the
jury on an "accessory after the fact" charge as a lesser included
offense to the robbery charge. "The district court has no discretion to
refuse to give a lesser-included instruction if the evidence warrants
the instruction and the defendant requests it." United States v. Baker,
985 F.2d 1248, 1259 (4th Cir. 1993). Here, however, Jones was not
entitled to the instruction because accessory after the fact is not a
lesser included offense of robbery.
One offense is a lesser included offense of another only if "the ele-
ments of the lesser offense are a subset of the elements of the charged
offense." Schmuck v. United States, 489 U.S. 705, 716 (1989). In
comparing the two offenses, a court must consider only the statutory
elements of the offenses. See id. at 716-17. We conclude that the
offense of being an accessory after the fact to a bank robbery is not
a lesser included offense of bank robbery because at least one element
of the former--that the defendant gave assistance to the principal
after the commission of the crime, see 18 U.S.C.A. § 3 (West Supp.
1999)--is not an element of the latter. See United States v. Rivera-
Figueroa, 149 F.3d 1, 6 (1st Cir. 1998) (explaining that under
Schmuck, "an accessory-after-the-fact offense is almost never going
to be a lesser included offense as to the principal crime"). Therefore,
as a matter of law, Jones was not entitled to the instruction and the
district court did not err in refusing to give it.
VI.
Finally, Jones argues that there was insufficient evidence to support
his convictions. We review such a claim by determining whether
"there is substantial evidence, taking the view most favorable to the
Government, to support" the guilty verdict. Glasser, 315 U.S. at 80.
Having reviewed the record, we hold that there was sufficient evi-
10
dence to support Jones' convictions and thus conclude that there is no
merit in this contention of error.4
VII.
In sum, we hold that the district court committed no error. Accord-
ingly, we affirm.
AFFIRMED
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4 We conclude that Bobbitt's claims regarding insufficiency of the evi-
dence, raised in his pro se brief, are similarly without merit. We have
carefully reviewed the remaining claims in Bobbitt's pro se brief and
conclude that they, too, are without merit.
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