United States v. George Hilliard ( 2014 )


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  •      Case: 13-60597      Document: 00512738090         Page: 1    Date Filed: 08/19/2014
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 13-60597
    Summary Calendar
    United States Court of Appeals
    Fifth Circuit
    FILED
    August 19, 2014
    UNITED STATES OF AMERICA,
    Lyle W. Cayce
    Clerk
    Plaintiff-Appellee
    v.
    GEORGE HILLIARD,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Southern District of Mississippi
    USDC No. 3:12-CR-117-1
    Before JOLLY, PRADO, and HAYNES, Circuit Judges.
    PER CURIAM: *
    George Hilliard was convicted by a jury of conspiring with others to steal
    Government property in violation of 18 U.S.C. § 371 and aiding and abetting
    in the stealing and conversion of approximately $23,000 and seven iPads
    belonging to the United States in violation of 18 U.S.C. § 641.                        He was
    sentenced to 21 months of imprisonment, three years of supervised release,
    and restitution in the amount of $20,499.
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
    Case: 13-60597        Document: 00512738090          Page: 2     Date Filed: 08/19/2014
    No. 13-60597
    Hilliard argues that the district court erred by admitting extrinsic
    evidence 1 concerning a previous robbery attempt by Hilliard and his co-
    defendants. Hilliard’s plea of not guilty to the charge of conspiracy placed his
    intent at issue for purposes of Federal Rule of Evidence 404(b). See United
    States v. Roberts, 
    619 F.2d 379
    , 382-83 (5th Cir. 1980). The district court
    allowed the testimony of Leroy Garrett and the other co-defendants regarding
    this other robbery because it was relevant to show intent, knowledge, and
    motive of Hilliard. The court determined that Hilliard’s state of mind and
    intent were clearly at issue, and that the probative value of the evidence was
    not substantially outweighed by unfair prejudice.                    See United States v.
    Beechum, 
    582 F.2d 898
    , 911 (5th Cir. 1978) (en banc). Additionally, the court
    gave a limiting jury instruction, emphasizing the “very limited purpose” for the
    use of such evidence. See United States v. Brugman, 
    364 F.3d 613
    , 621 (5th
    Cir. 2004). The district court did not abuse its discretion in admitting this
    evidence.
    Next, Hilliard argues that the evidence was insufficient to prove beyond
    a reasonable doubt that he conspired with others to steal property belonging
    to the Government. He contends that he was merely an associate of Garrett
    and the other co-defendants and that he only had knowledge of the conspiracy
    but did not agree to participate in it.
    Because Hilliard filed a motion for judgment of acquittal under Federal
    Rule of Criminal Procedure 29, we review the sufficiency of the evidence to
    determine if a rational juror could have found that the elements of the offense
    were proved beyond a reasonable doubt. United States v. Kay, 
    513 F.3d 432
    ,
    1  The Government did not argue that the evidence in question was intrinsic, rather
    than extrinsic. See United States v. Kinchen, 
    729 F.3d 466
    , 471 & n.2 (5th Cir.
    2013)(explaining difference between intrinsic and extrinsic evidence). Because we conclude
    that the district court did not err even applying the more stringent test for extrinsic evidence,
    we need not decide whether it was intrinsic or extrinsic.
    2
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    No. 13-60597
    452 (5th Cir. 2007). “To establish a violation of § 371, the government must
    prove: ‘(1) an agreement between two or more persons to pursue an unlawful
    objective; (2) the defendant's knowledge of the unlawful objective and
    voluntary agreement to join the conspiracy; and (3) an overt act by one or more
    of the members of the conspiracy in furtherance of the objective of the
    conspiracy.’” United States v. Freeman, 
    434 F.3d 369
    , 376 (5th Cir. 2005)
    (citing United States v. Peterson, 
    244 F.3d 385
    , 389 (5th Cir. 2001)).
    Hilliard admitted to federal agents after his arrest that he put the FBI’s
    cooperating individual, Garrett, in touch with the three corrupt police officers,
    co‑defendants Kent Daniels, Zack Robinson, and Watson Lee Jackson, Jr., for
    the purpose of robbing drug dealers at a hotel. The evidence shows that
    Hilliard entered into an agreement to provide the corrupt police officers so that
    they may commit the robbery and that he was involved in planning the date of
    the robbery based on the availability of the corrupt officers. Hilliard’s role in
    the robbery was to “put it together” with Garrett, and the role of the corrupt
    officers was to execute it. Hilliard expressed his authority to decide how much
    the corrupt officers should receive from the robbery. Hilliard was heard in
    recordings encouraging the robbery to take place, and he expressed anger when
    he did not receive any money after the robbery. The evidence establishes that
    Hilliard intended to participate in the conspiracy by recruiting the corrupt
    officers to execute the robbery, by sharing in the proceeds of the conspiracy,
    and by deciding how the proceeds would be divided among the other
    participants in the conspiracy. See United States v. Curtis, 
    635 F.3d 704
    , 719-
    20 (5th Cir. 2011). There is no evidence that Hilliard tried to withdraw from
    the conspiracy. The evidence was sufficient to support Hilliard’s conviction for
    conspiracy. See United States v. DeLucca, 
    630 F.2d 294
    , 300-01 (5th Cir. 1980).
    3
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    Regarding Hilliard’s argument that the evidence was also insufficient to
    convict him of aiding and abetting the theft of government property in violation
    of § 641, the preceding discussion of the sufficiency of the evidence regarding
    Hilliard’s participation in the conspiracy also applies to his aiding and abetting
    culpability. The evidence establishing his participation in the conspiracy was
    also sufficient for a jury to find that Hilliard was guilty of aiding and abetting
    in the theft of the Government property. See United States v. Pruett, 
    681 F.3d 232
    , 247 (5th Cir. 2012); 
    Freeman, 434 F.3d at 377
    .
    Hilliard argues that the district court clearly erred in ordering
    restitution in the amount of $20,499 and in determining the amount of loss
    which increased his offense level by four levels under U.S.S.G. § 2B1.1(b)(1)(C).
    Hilliard argues that the amounts included costs associated with prosecution
    and criminal investigation. He also argues that the district court erred in the
    guideline calculation because the Government failed to prove the loss amount
    by a preponderance of evidence, including the foreseeability of the loss of an
    iPad.
    We apply the plain error standard of review because Hilliard did not
    make the same objection in the district court that he makes now on appeal
    concerning whether the loss was due to excluded costs or concerning the
    foreseeability of the loss of the iPad. See Puckett v. United States, 
    556 U.S. 129
    , 134-35 (2009); United States v. Peltier, 
    505 F.3d 389
    , 391-92, 394 (5th Cir.
    2007). The evidence at trial included recorded conversations which showed
    that Hilliard was aware that the robbery would involve at least $20,000 and
    iPads. The amount of loss was foreseeable to Hilliard. The $20,000 cash and
    $499 for one iPad represents the property actually stolen by the persons
    involved in the conspiracy and not costs to the Government as suggested by
    Hilliard. The district court did not plainly err in finding the actual loss to be
    4
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    $20,499 and ordering this amount to be paid in restitution. See 
    Puckett, 556 U.S. at 134-35
    .
    Hilliard argues that the district court clearly erred by increasing the
    offense level to level 14 pursuant to § 2B1.1(b)(14)(B) because the Government
    failed to prove weapon possession by a preponderance of the evidence. He
    contends that he objected to the finding in the presentence report (PSR) that
    the offense involved the possession of a firearm. He cites testimony from the
    trial in which Robinson denied that any of the corrupt officers possessed a
    weapon, and testimony by Garrett that he did not remember guns being
    involved. He argues that the information in the PSR indicating that Jackson
    admitted that he had his service weapon on him when he entered the hotel
    room is not sufficient.
    In the district court, Hilliard challenged the enhancement on the ground
    that he did not personally possess a gun, whereas on appeal he challenges the
    enhancement on the grounds that neither he nor any of his co-defendants
    possessed a gun. Accordingly, we review his arguments for plain error. See
    United States v. Rodriguez, 
    15 F.3d 408
    , 414 (5th Cir. 1994).
    The PSR contained information from FBI agents that they overheard in
    audio recordings of the robbery that Robinson mentioned that he had his gun
    with him, and that Jackson admitted to agents after his arrest that he had his
    service weapon on him when he entered the room. Hilliard filed an objection
    to the PSR, stating that “the evidence established that Mr. Hilliard neither
    possessed a gun nor confessed to possessing a gun.” At Hilliard’s sentencing
    hearing, Hilliard’s counsel stated that he objected to the gun enhancement
    based on the fact that Hilliard was not carrying a gun that night and there was
    5
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    no testimony that he ever had a gun.                The district court overruled the
    objection. 2
    Hilliard did not object to nor attempt to rebut the PSR’s factual summary
    of the offense conduct which contained the information from the FBI agents
    concerning possession of weapons by Robinson and Jackson during the
    commission of the robbery. The district court was entitled to rely on those
    findings in assessing the weapons enhancement. See United States v. Ruiz,
    
    621 F.3d 390
    , 396 (5th Cir. 2010) (stating that district court may rely on the
    information in a PSR if the defendant does not rebut the findings); United
    States v. Ayala, 
    47 F.3d 688
    , 690 (5th Cir. 1995)(“The defendant bears the
    burden of demonstrating that the PSR is inaccurate; in the absence of rebuttal
    evidence, the sentencing court may properly rely on the PSR and adopt it.”).
    AFFIRMED.
    2   The district court referenced its “rationale for [its] ruling [as] expressed in the
    sentencing of the other defendants.” We conclude this reference is to the reasoning and not
    to the testimonial evidence presented only at co-defendant Robinson’s hearing. Thus, we
    reject the Government’s effort to proffer testimonial evidence from other defendants’
    sentencing hearings in support of affirmance here and need not address Hilliard’s objection
    to considering that evidence raised in his reply brief. We conclude that the evidence
    presented in Hilliard’s case, together with the PSR, support the enhancement.
    6