UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4798
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEVEN EDDINGTON,
Defendant - Appellant.
No. 08-4799
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TIMOTHY WAYNE EDDINGTON,
Defendant - Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Rock Hill. Cameron McGowan Currie,
District Judge. (0:07-cr-01149-CMC-02; 0:07-cr-01149-CMC-01)
Argued: January 28, 2011 Decided: March 11, 2011
Before WILKINSON, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Steven Michael Hisker, Duncan, South Carolina; James P.
Rogers, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South
Carolina, for Appellants. Thomas Ernest Booth, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON
BRIEF: W. Walter Wilkins, III, United States Attorney, Robert C.
Jendron, Jr., Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Following separate jury trials, co-defendants Timothy Wayne
Eddington and his son, Steven Eddington, were convicted of
conspiracy to commit bank robbery, in violation of 18 U.S.C. §§
371, 2113(a) (2006); carrying an explosive during the commission
of a felony, in violation of 18 U.S.C. § 844(h)(2) (2006);
possession of unregistered destructive devices, in violation of
26 U.S.C. § 5861(d) (2006); and possession of destructive
devices in furtherance of a crime of violence, in violation of
18 U.S.C. § 924(c)(1)(A) (2006). In addition, Timothy was
convicted of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1) (2006). Timothy and Steven
received sentences of 600 months and 521 months, respectively.
We reject each of the Appellants’ assignments of error and
affirm the convictions and sentences.
I.
On appeal, Timothy Eddington raises six issues, and Steven
joins in the final three. 1 First, Timothy argues that the
1
Timothy has also filed a pro se motion to relieve his
attorney, a supplemental brief, and a statement offering to
serve more time in prison or receive a death sentence in
exchange for a new trial for Steven, who was eighteen years old
at the time of the offenses. We deny Timothy’s motion to relieve
his attorney, and we decline to consider his supplemental brief,
since he is represented by counsel. Further, we note that the
district court conducted a thorough colloquy with Timothy before
he decided to testify at his own trial.
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district court should have suppressed his statements because
they were induced by a law enforcement agent’s false promise to
charge him only with trespassing. Second, he argues the district
court should have granted a mistrial after co-defendant William
Puckett stated that Timothy obtained money for the pipe bomb
supplies from “another crime.” Third, he argues the prosecutor
improperly shifted the burden of persuasion to the defense by
arguing that Timothy could have called Steven’s girlfriend,
Christy Barnes, as a witness.
Together, the Eddingtons contend: (1) possession of the
pipe bombs did not further any conspiracy under 18 U.S.C. §
924(c); (2) the evidence was insufficient to support the
conspiracy charge; and (3) convictions for 18 U.S.C. § 924(c)
and 18 U.S.C. § 844(h) violate double jeopardy because the
provisions “are essentially identical.” We consider these
contentions in turn.
A.
We determine whether a confession was unconstitutionally
coerced by the totality of the circumstances. See Arizona v.
Fulminante, 499 U.S. 279, 285-86 (1991). The existence of a
promise in connection with a confession does not render a
confession per se involuntary. See id.; United States v.
Braxton, 112 F.3d 777, 780 (4th Cir. 1997) (en banc) (“The mere
existence of threats, violence, implied promises, improper
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influence, or other coercive police activity . . . does not
automatically render a confession involuntary.”). In this case,
the record fully supports the district court’s denial of the
motion to suppress.
York County Sheriff’s Department Captain Jerry Lee Hoffman
read Timothy his Miranda rights and had Timothy read them out
loud himself. Hoffman ended an initial interview because Timothy
said he was not feeling well, and Hoffman reviewed Timothy’s
rights before commencing the second interview. Furthermore,
Timothy does not point to any evidence of coercion other than
Hoffman’s alleged promise that Timothy would only face a
trespassing charge, and this alleged promise did not involve
actual physical violence or “a credible threat of physical
violence.” Fulminante, 499 U.S. at 288. Nor was there any
indication that the investigating agent's statement “critically
impaired” Timothy's “capacity for self-determination,” Braxton,
112 F.3d at 780 (internal quotation marks omitted), or that
Timothy's will “was overborne in such a way as to render his
confession the product of coercion,” Fulminante, 499 U.S. at
288.
Timothy argues that post-hearing testimony from his co-
defendants corroborates the existence of the assertedly unlawful
promise. Specifically, co-defendant William Christopher Puckett
testified that he was not told about the possibility of
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receiving a trespassing charge until after Puckett made his
statement. Co-defendant Edgar Scott Williams, IV, also
testified, albeit somewhat contradictorily, that he was not
informed about the trespassing charge until after he made his
statement. Finally, at a separate suppression hearing, the
district court considered and rejected a claim from Steven about
the trespassing charge. This testimony, which is at best
inconclusive, does not support reversal.
B.
Next, Timothy contends that the district court erred by
denying his motion for a mistrial after co-defendant Puckett
testified that Timothy got the money to purchase shotgun shells
“from another crime we committed.” We review a district court’s
denial of a motion for a mistrial for an abuse of discretion.
United States v. Wallace, 515 F.3d 327, 330 (4th Cir. 2008).
Here, the district court immediately struck Puckett’s
response and admonished the jury not to “consider [the response]
at all” in deliberations. In the district court’s final charge
to the jury, the court also told the jury that the commission of
a past crime does not support the conclusion the defendant
committed the charged crime. 2 Given the district court’s careful
2
Timothy Eddington, who was charged with possession of a
firearm by a convicted felon, stipulated that he had a prior
felony conviction.
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instructions and the small part, if any, this reference played
in the trial, the district court did not abuse its discretion in
denying the motion for a mistrial. See United States v.
Williams, 461 F.3d 441, 451 (4th Cir. 2006) (noting that this
court presumes the jury follows court’s limiting instructions).
C.
Timothy next contends that the Government's closing
argument improperly shifted the burden of persuasion when the
prosecutor asserted that Timothy could have called Steven’s
girlfriend, Christy Barnes, as a witness. We review a claim of
prosecutorial misconduct “to determine whether the conduct so
infected the trial with unfairness as to make the resulting
conviction a denial of due process.” United States v. Scheetz,
293 F.3d 175, 185 (4th Cir. 2002) (internal quotation marks
omitted). “The test for reversible prosecutorial misconduct has
two components; first, the defendant must show that the
prosecutor's remarks or conduct were improper and, second, the
defendant must show that such remarks or conduct prejudicially
affected his substantial rights so as to deprive him of a fair
trial.” Id.
We have carefully reviewed the record and find no basis for
relief. Given the context of the prosecutor’s statements, the
claim’s tangential subject matter, and the district court’s
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remedial instruction, we conclude that Timothy has not shown
prejudice.
D.
Next, both Appellants challenge their convictions under
Count Four, which alleged that, “during and in relation to a
crime of violence,” they possessed pipe bombs in furtherance of
such crime. (JA I 30). This court reviews a sufficiency of the
evidence challenge by determining whether, viewing the evidence
in the light most favorable to the Government, any rational
trier of fact could find the essential elements of the crime
beyond a reasonable doubt. United States v. Collins, 412 F.3d
515, 519 (4th Cir. 2005); see Glasser v. United States, 315 U.S.
60, 80 (1942). We review both direct and circumstantial
evidence, and accord the Government all reasonable inferences
from the facts shown to those sought to be established. United
States v. Harvey, 532 F.3d 326, 333 (4th Cir. 2008). We will
uphold the jury’s verdict if substantial evidence supports it,
and will reverse only in those rare cases of a clear failure by
the prosecution. United States v. Foster, 507 F.3d 233, 244-45
(4th Cir. 2007), cert. denied, 128 S. Ct. 1690 (2008). “A
defendant challenging the sufficiency of the evidence faces a
heavy burden.” Id. at 245.
In order to prove a violation of 18 U.S.C. § 924(c), the
Government must prove that the defendants (1) used, carried, or
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possessed a firearm, (2) in furtherance of a crime of violence.
See § 924(c)(1)(A); United States v. Jeffers, 570 F.3d 557, 556
n.7 (4th Cir. 2009). In this case, the Eddingtons argue “that
possession of the pipe bombs did nothing to further the
conspiracy because the conspiracy was formed, if at all, prior
to the possession of the pipe bombs.” 3 The Government responds
that conspiracy is a continuing offense and, in this case, the
bombs were made to “divert the attention of the police during
the robbery.”
Ample evidence supports Appellants’ convictions. They
purchased the materials for the pipe bombs and then assembled
the bombs for use in connection with the robbery. The evidence
at trial showed the conspirators discussed using the bombs as a
diversion. Since the inchoate crime of conspiracy to commit
robbery is itself a crime of violence, it is irrelevant that the
conspirators did not actually use the bombs to complete the
robbery. See United States v. Phan, 121 F.3d 149, 153 (4th Cir.
1997) (“The relevant question is whether Phan actively employed
the handguns during and in relation to the conspiracy, not
3
In support, the Eddingtons rely on a passage from United
States v. Lomax, 293 F.3d 701 (4th Cir. 2002), suggesting the
weapon had to advance or help forward the crime of violence, and
United States v. Phan, 121 F.3d 149 (4th Cir. 1997), in which
the defendant gave a firearm to a co-conspirator in a planned
robbery.
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whether the handguns were actively employed during and in
relation to the robbery.”); see also Jeffers, 570 F.3d at 566
n.7 (noting an “active employment” instruction is not required
under the current version of § 924(c)).
E.
The Eddingtons also challenge the sufficiency of the
evidence to support their conspiracy convictions. In support,
they cite selected testimony by their co-conspirators to suggest
that even absent the arrest that thwarted their plans, the
robbery might not have occurred.
In order to establish a violation of 18 U.S.C. § 371, the
Government must prove there was an agreement between two or more
people to commit the crime and an overt act in furtherance of
the conspiracy. United States v. Ellis, 121 F.3d 908, 922 (4th
Cir. 1997). The evidence here was sufficient to support the
conspiracy convictions. The conspirators engaged in considerable
planning, purchased supplies, and assembled two pipe bombs. The
fact that the conspirators may have had doubts about the likely
success (or even the advisability) of the plan, or had not
completed all of the preparations, does not call into question
the sufficiency of the evidence.
F.
Finally, the Eddingtons contend their consecutive sentences
under 18 U.S.C. § 844(h) and 18 U.S.C. § 924(c) are prohibited
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by well-settled double jeopardy doctrine because their
convictions for these offenses arose out of the same conduct.
The Eddingtons did not preserve this issue at trial, so we
review for plain error. United States v. Olano, 507 U.S. 725,
731-32 (1993). Because we conclude that Congress intended to
impose consecutive sentences for these offenses, the convictions
and resulting consecutive sentences do not violate double
jeopardy. See United States v. Smith, 502 F.3d 680, 691 (7th
Cir. 2007) (affirming, over double jeopardy objection,
consecutive sentences for convictions under 18 U.S.C. § 844(i)
and 18 U.S.C. § 924(c)(1)(A)); United States v. Strickland, 261
F.3d 1271, 1274 (11th Cir. 2001) (holding consecutive sentences
based on the same course of conduct under § 924(c) and § 844(d)
do not violate double jeopardy), cert. denied, 534 U.S. 1099
(2002); see also United States v. Challoner, 583 F.3d 745, 749-
50 (10th Cir. 2009) (holding, in an appeal from the denial of
post-conviction relief under 28 U.S.C. § 2255, that counsel
handling direct appeal from conviction was not ineffective for
failing to challenge on double jeopardy grounds consecutive
sentences based on convictions under § 844(h) and § 924(c)).
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II.
For the reasons set forth, we affirm the Eddingtons’
convictions and sentences. In appeal no. 08-4799, we deny
Timothy Eddington’s motion to relieve counsel.
AFFIRMED
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