United States v. Kieffer ( 2021 )

Case: 19-30225 Document: 00515788889 Page: 1 Date Filed: 03/19/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 19, 2021
No. 19-30225 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jerome Kieffer; Armstead Kieffer,
Defendants—Appellants.
Appeals from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:17-CR-114-2
Before Haynes, Higginson, and Oldham, Circuit Judges.
Haynes, Circuit Judge:
Jerome Kieffer and his father, Armstead Kieffer, appeal their
convictions for offenses relating to two armored truck robberies. For the
reasons set forth below, we AFFIRM the judgments of the district court.
I. Background
Jerome, Armstead, and a third man, Deltoine Scott, were charged
with multiple offenses in connection with an October 11, 2015 armed robbery
of an armored truck as it was servicing a Chase Bank ATM in New Orleans,
and a May 31, 2017 attempted robbery of an armored truck as it was servicing
Case: 19-30225 Document: 00515788889 Page: 2 Date Filed: 03/19/2021
No. 19-30225
a Campus Federal Credit Union ATM in New Orleans. According to the
Government, Jerome and Scott were the gunmen during both robberies while
Armstead knowingly received money from the 2015 robbery and acted as a
lookout during the 2017 robbery. Jerome and Armstead were tried together,
while Scott, who had entered into a plea agreement with the Government,
testified against them. Besides Scott, the Government called numerous other
witnesses and presented over 2800 pages of exhibits, including photographs,
surveillance footage, and cell phone data.
After a five-day trial, the jury convicted Jerome of conspiracy to
commit bank robbery in violation of 18 U.S.C. § 371; armed bank robbery in
violation of § 2113(a) and (d) and § 2; brandishing a firearm in furtherance of
a crime of violence in violation of § 924(c)(1)(A) and § 2; attempted armed
bank robbery resulting in death in violation of § 2113(a), (d), and (e) and § 2;
and causing death through use of a firearm in violation of § 924(j)(1) and § 2.
Armstead was convicted of conspiracy to commit bank robbery in violation
of § 371; attempted armed bank robbery resulting in death in violation of
§ 2113(a), (d), and (e) and § 2; causing death through use of a firearm in
violation of § 924(j)(1) and § 2; making a material false statement to a grand
jury in violation of § 1623; and possession of a firearm by a felon in violation
of § 922(g)(1) and § 924(a)(2).
During the trial, the district court permitted the jurors to submit
written questions for the witnesses. Once submitted, the district court would
modify the questions to comply with the Federal Rules of Evidence, and then
would pose them directly to the witnesses. During the first two days of the
trial, the district court did not permit counsel to review the jurors’ questions
prior to asking them. However, after repeated objections from defense
counsel, the district court agreed to allow counsel to review and object to
questions prior to asking them. Over the course of the trial, the jurors
2
Case: 19-30225 Document: 00515788889 Page: 3 Date Filed: 03/19/2021
No. 19-30225
submitted roughly fifty questions to the district court, of which
approximately twenty-one were actually posed to witnesses.
Prior to sentencing, Jerome and Armstead filed separate motions for a
new trial on the basis that the district court erred in its handling of the jurors’
questions. The district court denied these motions and sentenced Jerome
and Armstead to life imprisonment. Both timely appealed.
II. Discussion
On appeal, Jerome and Armstead each argue that there was not
sufficient evidence to support their convictions and that the district court
erred by denying their motion for a new trial. Additionally, Jerome has filed
a letter under Federal Rule of Appellate Procedure 28(j), asserting that his
conviction under § 924(c) for brandishing a firearm in furtherance of a crime
of violence is invalid in light of United States v. Davis, 139 S. Ct. 2319 (2019),
and United States v. Reece, 938 F.3d 630 (5th Cir. 2019), which were decided
after the judgment was entered in this case. None of their arguments prevail.
A. Sufficiency of the Evidence
Jerome and Armstead preserved their challenges to the sufficiency of
the evidence by moving for a judgment of acquittal at the close of the
Government’s case, which was the close of all evidence. 1 We review their
preserved claims de novo, according “substantial deference to the jury
verdict.” United States v. Suarez, 879 F.3d 626, 630 (5th Cir. 2018). Under
this standard, 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
1
Both defendants did, indeed, make a general Rule 29 motion. Jerome’s attorney
stated: “We would move on behalf of Jerome Kieffer Rule 29.” Armstead’s attorney then
stated: “Judge, we would likewise move on the rule 29 on behalf of Armstead.”
3
Case: 19-30225 Document: 00515788889 Page: 4 Date Filed: 03/19/2021
No. 19-30225
beyond a reasonable doubt.” United States v. Vargas-Ocampo, 747 F.3d 299,
301 (5th Cir. 2014) (en banc).
Jerome and Armstead both contend that their convictions
impermissibly depend on Scott’s unreliable testimony. Specifically, Jerome
asserts that Scott’s testimony is the only evidence that identifies him as a
participant in the 2015 and 2017 robberies. Similarly, Armstead argues that
there is no evidence apart from Scott’s testimony supporting his convictions
for conspiracy to commit bank robbery, attempted armed bank robbery
resulting in death, and causing death through use of a firearm.
Assuming arguendo that these convictions depend on Scott’s
testimony, a conviction “may be sustained if supported only by the
uncorroborated testimony of a coconspirator . . . unless the testimony is
incredible or insubstantial on its face.” United States v. Bermea, 30 F.3d 1539,
1552 (5th Cir. 1994); see also United States v. Garcia Abrego, 141 F.3d 142, 155–
56 (5th Cir. 1998) (explaining that such testimony is sufficient “so long as it
does not defy the laws of nature or relate to matters that the witness could
not have observed”). Whatever the problems with Scott’s credibility, his
account was neither physically impossible nor outside his powers of
observation; the jury decides credibility of witnesses, not the appellate court.
See United States v. Delgado, 256 F.3d 264, 273–74 (5th Cir. 2001) (noting
that “we do not evaluate the weight of the evidence or the credibility of the
witnesses”). Thus, Scott’s testimony alone was sufficient to support the
Kieffers’ convictions.
Armstead also challenges the sufficiency of the evidence supporting
his conviction for making a false material statement. The basis for this
conviction was Armstead’s statement to the grand jury that he did not know
Jerome’s whereabouts at 4:30 in the afternoon of May 31, 2017. To establish
this statement’s falsity, the Government relied on evidence of a seven-
4
Case: 19-30225 Document: 00515788889 Page: 5 Date Filed: 03/19/2021
No. 19-30225
minute-and-forty-second phone call between Armstead and Jerome at
approximately 4:30 p.m. on May 31. On appeal, Armstead argues that there
is insufficient evidence to establish that he intentionally misled the grand jury
because it is plausible that he truthfully did not remember this phone call.
But when viewed in the light most favorable to the jury’s verdict, the
evidence is sufficient to sustain the conviction, especially as Armstead
testified before the grand jury little more than one month after the phone call
took place. 2
Finally, Armstead challenges his conviction for being a felon-in-
possession of a firearm based on Rehaif v. United States, in which the Supreme
Court held that, to obtain a conviction under § 922(g), “the Government
must prove both that the defendant knew he possessed a firearm and that he
knew he belong to the relevant category of persons barred from possessing a
firearm.” 139 S. Ct. 2191, 2200 (2019). Armstead contends that there was
no evidence showing that he knew he was a felon when he possessed the
firearms. 3 While an argument can be made that Armstead’s general objection
2
Armstead also argues that his statement was not material because it was made on
the same day that the Government filed a superseding indictment and thus did not
influence the tribunal. Yet, as “[a]ctual influence is not required” for a statement to be
material, this argument is unavailing. United States v. Abrahem, 678 F.3d 370, 374 (5th Cir.
2012).
3
Armstead additionally contends that there was insufficient evidence to establish
that he possessed the relevant firearms. “Possession of a firearm may be actual or
constructive, and it may be proved by circumstantial evidence.” United States v. Meza, 701
F.3d 411, 419 (5th Cir. 2012) The jury may find “constructive possession” if the defendant
had “dominion or control over the premises in which the item is found.” Id. In turn,
“[d]ominion or control over the premises may be shown by the presence of the defendant’s
personal belongings in the house.” Id. In this case, the relevant firearms were found in
Armstead’s residence, in a bedroom containing his cell phones and identification cards.
Further, there was no evidence suggesting that anyone besides Armstead occupied the
residence. Consequently, there was sufficient evidence for a reasonable jury to find that
Armstead constructively possessed the firearms.
5
Case: 19-30225 Document: 00515788889 Page: 6 Date Filed: 03/19/2021
No. 19-30225
and failure to raise this specific argument below results only in plain error
review, we conclude that his argument fails even under de novo review. 4 See
United States v. Staggers, 961 F.3d 745, 754 (5th Cir. 2020) (reviewing de novo
a sufficiency of the evidence claim based on Rehaif where defendants made
general sufficiency objections), cert. denied, 141 S. Ct. 388 (U.S. 2020)
(mem.); cf. United States v. Huntsberry, 956 F.3d 270, 282 (5th Cir. 2020)
(concluding that particularized objection on another ground waived the
Rehaif argument). Because Armstead stipulated to being a felon at trial, there
was sufficient evidence to establish that he knew he was a felon under either
standard of review. See Staggers, 961 F.3d at 756–57 (explaining that
“[s]ufficiency is measured against the actual elements of the offense, not the
elements stated in the jury instructions” and holding that the defendant’s
stipulation to felon status was enough to sustain his § 922(g)(1) conviction
under Rehaif).
B. Motions for a New Trial
As they did below, Jerome and Armstead contend that a new trial is
warranted because the district court posed jurors’ questions to witnesses
without first allowing counsel to review the questions. They also appear to
argue that the sheer number of juror questions suggests that the jurors
abandoned their role as neutral fact-finders. We review a district court’s
denial of a motion for a new trial for abuse of discretion. United States v.
Hoffman, 901 F.3d 523, 552 (5th Cir. 2018), cert. denied, 139 S.Ct. 2615 (2019)
(mem.). A procedural defect may justify a new trial if it “caused a
miscarriage of justice.” Id.4
Because Armstead’s argument fails even under the least deferential standard of
review, we conclude it is unnecessary to further address which standard of review is proper
here.
6
Case: 19-30225 Document: 00515788889 Page: 7 Date Filed: 03/19/2021
No. 19-30225
District courts have discretion over “[t]he proper handling of juror
questions.” United States v. Callahan, 588 F.2d 1078, 1086 n.2 (5th Cir.
1979). When exercising their discretion, courts must be cognizant of the risks
of permitting such questions, including that “jurors can find themselves
removed from their appropriate role as neutral fact-finders,” and that “there
is a certain awkwardness for lawyers wishing to object to juror-inspired
questions.” United States v. Collins, 226 F.3d 457, 461 (6th Cir. 2000); cf.
United States v. Ajmal, 67 F.3d 12, 14–15 (2d Cir. 1995) (holding, in an
egregious case, that the district court abused its discretion by repeatedly
encouraging jurors to pose questions to witnesses, including the defendant,
thereby “altering the role of the jury from neutral fact-finder to inquisitor and
advocate”). Ultimately, “whether juror questioning constitutes an abuse of
discretion is a factually intense inquiry requiring a case-by-case analysis.”
United States v. Richardson, 233 F.3d 1285, 1291 (11th Cir. 2000).
In Callahan, we found no abuse of discretion where the district judge
asked a single written question submitted by a juror as to a factual matter after
determining that the question was not “legally improper,” but did not
provide counsel an opportunity to object outside the presence of the jury. 588
F.2d at 1086. Because the district court here followed an identical procedure,
we cannot say that its method was erroneous. 5 See Jacobs v. Nat’l Drug Intel.
Ctr., 548 F.3d 375, 378 (5th Cir. 2008) (noting that “one panel . . . may not
overturn another panel’s decision, absent an intervening change in the law,
5
Several of our sister circuits require district courts to provide counsel with an
opportunity to review and object to juror questions outside the presence of the jury. United
States v. Rawlings, 522 F.3d 403, 408 (D.C. Cir. 2008); accord United States v. Brown, 857
F.3d 334, 340–41 (6th Cir. 2017); Richardson, 233 F.3d at 1290–91; United States v.
Hernandez, 176 F.3d 719, 726 (3d Cir. 1999); Ajmal, 67 F.3d at 15. Such a procedure helps
avoid undue prejudice to any of the parties that could result in a determination that the
district court abused its discretion.
7
Case: 19-30225 Document: 00515788889 Page: 8 Date Filed: 03/19/2021
No. 19-30225
such as by a statutory amendment, or the Supreme Court, or our en banc
court”). Further, although the jurors submitted many questions in this case,
a large volume of questions does not by itself justify a new trial. See
DeBenedetto ex rel. DeBendetto v. Goodyear Tire & Rubber Co., 754 F.2d 512,
517 (4th Cir. 1985) (holding that the defendants were not prejudiced by the
district court’s allowance of ninety-five juror questions because the court
could “perceive no bias in any of the questions”).
Nonetheless, district courts should consider following an established
procedure such as that set forth by the D.C. Circuit in United States v.
Rawlings:
First, the court should inform counsel in advance that juror
questions will be allowed, should require that all juror
questions be submitted in writing, should review them with
counsel out of the presence of the jury (evaluating objections,
if any) and then, if it finds the question proper, should itself ask
the question of the witness. In addition, before any questioning
begins, the court should instruct the jurors about the function
of the questioning procedure in clarifying factual (not legal)
issues and should direct them to remain neutral and, if the
judge fails to ask a particular question, not to take offense or to
speculate as to the reasons therefor or what answer might have
been given. Then, after a particular witness has responded to
the questions, the court should permit counsel to re-question
the witness. We also think it prudent to repeat the instructions
in the closing charge.
522 F.3d 403, 408 (D.C. Cir. 2008) (citations omitted).
Regardless of the specific procedure used by the district court, the
key question here is whether any inappropriate questions were asked or any
prejudice to the defendants ensued. Importantly, despite numerous pages of
briefing on this issue, not one single question is identified by either defendant
as causing prejudice. After reviewing all of the questions submitted by the
8
Case: 19-30225 Document: 00515788889 Page: 9 Date Filed: 03/19/2021
No. 19-30225
jurors, we see no indication that any juror abandoned his or her role as a
neutral fact-finder. Consequently, we conclude that the district court did not
abuse its discretion in denying the Kieffers’ motions for a new trial.
C. § 924(c) Conviction
Under § 924(c)(1)(A), the use of a firearm during a “crime of
violence” is prohibited. In turn, a “crime of violence” is a felony that “has
as an element the use, attempted use, or threatened use of physical force
against the person or property of another.” 18 U.S.C. § 924(c)(3)(A); see
Davis, 139 S. Ct. at 2323–25, 2336 (ruling that the alternative definition at
§ 924(c)(3)(B) is unconstitutionally vague). Under this standard, bank
robbery in violation of § 2113(a) is a crime of violence, but conspiracy to
commit bank robbery in violation of § 371 is not. Reece, 938 F.3d at 636; see
also United States v. Smith, 957 F.3d 590, 593–94 (5th Cir. 2020) (holding that
aggravated bank robbery in violation of § 2113(a) and (d) is a crime of violence
under § 924(c)(3)(A)), cert. denied, 2020 WL 6551848 (U.S. Nov. 9, 2020)
(mem.).
Jerome claims that his § 924(c) conviction was predicated on either
bank robbery or conspiracy to commit bank robbery, creating an ambiguity
that makes his conviction untenable in light of Reece. Jerome is incorrect: his
conviction was predicated solely on armed bank robbery. Thus, there is no
ambiguity, meaning Reece is inapplicable.
9
Case: 19-30225 Document: 00515788889 Page: 10 Date Filed: 03/19/2021
No. 19-30225
Accordingly, we AFFIRM the judgments of the district court. 6
6
The convictions in this case under § 2113(a), (d), and (e) and § 2 for attempting
to rob the Campus Federal Credit Union require, in part, establishment that the Campus
Federal Credit Union was federally insured, as per § 2113(g). Here, the parties stipulated
that the Campus Federal Credit Union was federally insured; accordingly, there was
sufficient evidence on that point. See, e.g., United States v. Abbott, 265 F. App’x 307, 309–
10 (5th Cir. 2008) (per curiam) (rejecting sufficiency challenge to conviction under § 2113
where the parties stipulated to federal insurance).
10
Case: 19-30225 Document: 00515788889 Page: 11 Date Filed: 03/19/2021
No. 19-30225
Andrew S. Oldham, Circuit Judge, concurring in the judgment:
I do not understand why the majority applies de novo review to
Armstead’s unpreserved claim under Rehaif v. United States, 139 S. Ct. 2191(2019); see ante, at 5–6. De novo review applies to preserved errors—because
we want defendants to preserve errors, and we want district courts to address
them before we do. That’s why, on materially identical facts, we previously
reviewed an unpreserved Rehaif claim like Armstead’s only for plain error.
See United States v. Huntsberry, 956 F.3d 270, 282 (5th Cir. 2020). The
majority’s embrace of de novo review contravenes Huntsberry. And it
highlights a disturbing countertrend in our precedent, which encourages
defendants to say as little as possible in the district court and to save their
good arguments as “gotchas!” for appeal. That’s the opposite of the way the
system is supposed to work.
I.
We apply de novo review to preserved errors. We do that for at least
two distinct reasons. The first is definitional: When a defendant preserves a
legal error and allows the district court to adjudicate it, we review it de
novo—that is, again or afresh. See Webster’s New International
Dictionary 699 (2d ed. 1934; 1950) (defining de novo as “afresh”). We
step into the shoes of the district court; apply the same legal standards as the
district court; and conduct the legal analysis again. See, e.g., Playa Vista
Conroe v. Ins. Co. of the W., --- F.3d ---, 2021 WL 836715, at *2 (5th Cir. Mar.
5, 2021). It makes no sense to apply “de novo review” to a question
unreviewed by the district court; that is neither “de novo” nor “review.”
Rather, that’s “tabula rasa first view.” But cf. Cutter v. Wilkinson, 544 U.S.
709, 718 n.7 (2005).
Judicial efficiency is the second reason we apply de novo review only
to preserved errors. Our system operates most efficiently when errors are
11
Case: 19-30225 Document: 00515788889 Page: 12 Date Filed: 03/19/2021
No. 19-30225
raised (and hopefully) remedied at the first available opportunity. See, e.g.,
Wainwright v. Sykes, 433 U.S. 72, 88–90 (1977). Of course, any particular
defendant—quite understandably—is more concerned with his personal
victory than with the system’s efficiency. So there is a natural litigation
instinct to lie behind the log and save one or more objections as get-out-of-
jail cards that can be played on appeal if necessary. See id. at 89. De novo
review is the judicial system’s answer to this problem: We offer de novo
review on appeal—the most beneficial a defendant-appellant could hope
for—as a carrot to incentivize the defendant to object in the trial court and
hence to promote judicial efficiency over parochial stratagems.
Plain error is the stick. The whole point of plain-error review is to
make it more difficult to win on appeal using an unpreserved error. See, e.g.,
Puckett v. United States, 556 U.S. 129, 134 (2009). In some areas—Guidelines
errors being the most obvious—we’ve softened plain error to the point that
it provides little or no deterrent to litigants who would sit on their rights in
the district court. See United States v. del Carpio Frescas, 932 F.3d 324, 333–
44 (5th Cir. 2019) (Oldham, J., concurring). But generally, plain-error review
continues to make it much harder—and sometimes impossible—to prevail
on appeal using an unpreserved error. See United States v. Jackson, 549 F.3d
963, 977 (5th Cir. 2008) (“Under plain error, if a defendant’s theory requires
the extension of precedent, any potential error could not have been plain.”
(quotation omitted)).
Given that preservation of error is the line between de novo review
and plain-error review, you might reasonably wonder what it takes to
preserve an error. In general, the litigant attempting to preserve an error must
focus the decisionmaker’s mind on the specific legal problem, so the error (if
there is one) can be corrected. As we put it more than a century ago: “The
court’s attention [must be] so specifically directed to the particular [error]
intended to be complained of as to be afforded the opportunity of
12
Case: 19-30225 Document: 00515788889 Page: 13 Date Filed: 03/19/2021
No. 19-30225
withdrawing or correcting the [error], if, on consideration of the [objection],
it [i]s deemed to be well founded.” Atl. Coast Line R. Co. v. Raulerson, 267 F.
694, 696 (5th Cir. 1920).
It necessarily follows that a general declaration of “insufficient
evidence!” is not a meaningful objection. It challenges no particular legal
error. It identifies no particular factual deficiency. It does nothing to focus
the district judge’s mind on anything. It’s the litigator’s equivalent of freeing
the beagles in a field that might contain truffles. Cf. del Carpio Frescas, 932
F.3d at 331 (“Judges are not like pigs, hunting for truffles buried in the
record.” (quotation omitted)). Rather, if the defendant wants to preserve an
insufficient-evidence challenge for de novo review, he must make a proper
motion under Federal Rule of Criminal Procedure 29 and “specify at trial the
particular basis on which acquittal is sought so that the Government and
district court are provided notice.” United States v. McDowell, 498 F.3d 308,
312 (5th Cir. 2007) (emphasis added).
Take for example our decision in United States v. Herrera, 313 F.3d
882 (5th Cir. 2002) (en banc) (per curiam). That case concerned a conviction
under 18 U.S.C. § 922(g)(3), which prohibits possession of a firearm by a
person who’s either (A) “addicted to” a controlled substance or (B) an
“unlawful user” of it. See id. at 884. After the close of the Government’s
evidence, the defendant did far more than make a boilerplate, generalized,
and non-particularized objection to the sufficiency of the evidence. See ibid.Herrera moved under Federal Rule of Criminal Procedure 29 for judgment
of acquittal on the ground that the Government failed to prove that he was
“addicted to” a controlled substance. Ibid. He thus pointed to a specific
problem in the Government’s proof and focused the district court’s attention
on it.
13
Case: 19-30225 Document: 00515788889 Page: 14 Date Filed: 03/19/2021
No. 19-30225
In accordance with normal rules of error-preservation, we applied de
novo review to the preserved error—and only the preserved error. We held:
“[w]here, as here, a defendant asserts specific grounds for a specific element
of a specific count for a Rule 29 motion, he waives all others for that specific
count.” Ibid. Thus, by preserving the objection to evidence that he was
“addicted to” a controlled substance, Herrera waived any objection to the
Government’s proof that was an “unlawful user.” See ibid. When Herrera
tried to raise the latter point on appeal to our court, he did not get the benefit
of de novo review. See id. at 885.
Or take Huntsberry. In that case a federal jury convicted Huntsberry
for possession of a firearm by a felon in violation of 18 U.S.C. § 922(g). See
956 F.3d at 274. At trial, Huntsberry moved under Rule 29 for acquittal,
arguing the Government produced insufficient evidence that he knowingly
possessed the firearm. 956 F.3d at 282. Then on appeal, Huntsberry shifted
gears and argued the evidence also was insufficient to prove that he knew he
was a felon when he possessed the firearm. See id. at 282–83. This latter
argument, if preserved, would have entitled Huntsberry to relief under
Rehaif.
We nonetheless affirmed Huntsberry’s conviction for two reasons.
First, Huntsberry stipulated at trial that he had a prior felony conviction—
thus eliminating the Government’s burden to prove it. See 956 F.3d at 282
n.5. And second, in accordance with Herrera, we held that Huntsberry could
get de novo review only for the insufficiency arguments he preserved in the
district court. See id. at 282. Thus, Huntsberry could get de novo review of
whether the Government proved he knowingly possessed the firearm. But
Hunstberry could get only plain-error review of his Rehaif claim. Ibid.
14
Case: 19-30225 Document: 00515788889 Page: 15 Date Filed: 03/19/2021
No. 19-30225
II.
Armstead’s case is on all fours with Huntsberry. Just like Huntsberry,
Armstead filed a specific Rule 29 motion; Armstead argued that “there was
not a single witness that stated Armstead Kieffer was at the scene of the
robbery.” ROA.5023–24. Under Huntsberry and Herrera, Armstead can get
de novo review of that claim—but only that claim. Everything else is
reviewable only for plain error. And just like Huntsberry, Armstead stipulated
that he was a felon on the day he possessed a firearm—thus eliminating the
Government’s burden to prove it. Without violating the rule of orderliness,
we can therefore only review Armstead’s claim for plain error. Contra ante,
at 5–6 (applying de novo review).
The majority nonetheless premises its de novo approach on United
States v. Staggers, 961 F.3d 745 (5th Cir. 2020); see ante, at 5–6. It’s true that
Staggers applied de novo review. See 961 F.3d at 754. But its decision to do so
highlights a deep and puzzling tension in our error-preservation precedent.
According to the Staggers court, the defendants in that case only
“made general objections to the sufficiency of the evidence,” ibid.—that is,
they merely said “the evidence is insufficient.” The result is a
counterintuitive appellate jackpot: By objecting to nothing in particular, the
defendants preserved everything in general. And by calling the district judge’s
attention to no particular error, the defendants preserved the right to call our
attention to every conceivable error imaginable under the sun—including
errors under Rehaif, which had not even been decided at the time of trial.
There are at least four problems with that. First, Staggers is
inapplicable on its own terms. That decision purported to apply de novo
review only where the defendant made a “general objection to the sufficiency
of the evidence.” And that’s not what Armstead chose to do. He instead
made a specific objection, in a written Rule 29 motion, that said nothing at all
15
Case: 19-30225 Document: 00515788889 Page: 16 Date Filed: 03/19/2021
No. 19-30225
about whether he knew he was a felon when he committed bank robbery.
Worse, as in Huntsberry (and unlike in Staggers), Armstead stipulated that he
was a felon. Therefore, Staggers is irrelevant.
Second, even if Staggers applied, its rule turns error preservation
upside down. The whole point of error preservation and appellate standards
of review is that we want parties to raise their claims in the district court. But
under Staggers, why would any reasonable defendant object to anything? The
only “good” Rule 29 motion is a vacuous one; it’s always better to sandbag
the district court and maximize appellate flexibility.
Third, Staggers is premised on a misunderstanding of precedent. It
based its de novo review on a single sentence in United States v. Daniels, 930
F.3d 393 (5th Cir. 2019). See Staggers, 961 F.3d at 754 (“‘When a defendant
makes a general sufficiency-of-the-evidence challenge, we review the
sufficiency of the evidence supporting a conviction de novo.’” (quoting
Daniels, 930 F.3d at 402)). Daniels in turn based its assertion on a single
sentence in United States v. Brown, 727 F.3d 329, 335 (5th Cir. 2013). See
Daniels, 930 F.3d at 402 (“‘When a defendant makes a general sufficiency-
of-the-evidence challenge, we review the sufficiency of the evidence
supporting a conviction de novo.’” (quoting Brown, 727 F.3d at 335)). But
Brown did not involve a general sufficiency-of-the-evidence challenge at all;
rather, the defendants’ Rule 29 motions in that case specified the elements
on which the Government allegedly fell short. See 727 F.3d at 335. So
somehow our cases applying de novo review to generalized Rule 29 motions
are based on a single stray sentence from a case involving particularized Rule
29 motions.
Fourth, Staggers is premised on a mistake of fact. The court asserted
that one of the defendants in that case—Morrison—made only a “general
objection[] to the sufficiency of the evidence.” Staggers, 961 F.3d at 754. In
16
Case: 19-30225 Document: 00515788889 Page: 17 Date Filed: 03/19/2021
No. 19-30225
reality, however, Morrison made a very specific and non-general objection to
the sufficiency of the evidence. His attorney argued, inter alia, that “[t]here
has certainly been insufficient facts, evidence, and testimony to establish that
Mr. Morrison had the required intent to participate in a conspiracy to
distribute either 500 grams of powder cocaine, or any powder cocaine.” The
same attorney also argued:
The specific date on [count 2 of the indictment against
Morrison] is that a phone call was allegedly made on May 1st
of 2015, and that’s the date that is listed in the indictment. I do
not believe the government presented any evidence of any
wiretap or phone call that took place on May 1st, and so I would
say that, as a matter of law, there was no evidence presented as
to any calls on that date.
That is far, far from a generalized objection. Contra ante, at 6 (ignoring this
particularized objection); id. at 3 n.1 (doing the same for Armstead’s
particularized objection).
In short, Staggers was wrong on the facts. It was wrong on the law. It
turns error preservation upside down by directing defendants not to specify
the basis for their Rule 29 motions. And it does not apply here in any event.
The majority’s decision to follow it only deepens our circuit’s confusion over
this important area of law.
* * *
The Supreme Court has been very clear: “The trial is the main event
at which a defendant’s rights are to be determined and not simply a tryout on
the road to appellate review.” Davila v. Davis, 137 S. Ct. 2058, 2066 (2017)
(quotations omitted). Our court has been equally clear but diametrically
opposed: Whatever you do, hide the basis for your objections and pull your
17
Case: 19-30225 Document: 00515788889 Page: 18 Date Filed: 03/19/2021
No. 19-30225
punches at trial, so you can maximize your chances for success on appeal. In
my view, our trial courts deserve better. *
*
I also do not understand the majority’s discussion of United States v. Rawlings,
522 F.3d 403 (D.C. Cir. 2008). See ante, at 7–8. My hang-up is not the wisdom or folly of
the Rawlings procedure. What’s unclear to me is where we get the power to embrace it.
That long list of shoulds and ifs and thens looks more like something that would come from
an advisory (or model rules) committee. And more importantly, it seems problematic to
adopt the Rawlings rule here because the district court repeatedly violated it. If the
violations matter, then we’d have to reverse. If the violations don’t matter (which is what
I understand the majority to hold), then our entire discussion of Rawlings is advisory. But
see Letter from Chief Justice John Jay and the Associate Justices to President George
Washington (Aug. 8, 1793), in 3 Correspondence & Public Papers of John
Jay 488–89 (Johnson ed., 1891).
18