PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4539
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSEPH JAMES CAIN BENSON, a/k/a Black, a/k/a Boston,
Defendant – Appellant.
No. 18-4540
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BRYAN LAMAR BROWN, a/k/a Breezy,
Defendant – Appellant.
No. 18-4577
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARK XAVIER WALLACE, a/k/a M-EZ, a/k/a Mark Xavier Grinage, II, a/k/a
Mark Grinage, a/k/a Mark Xavier Lagrand, a/k/a Mark Xavier Wallace, II, a/k/a
Louis Xavier Joseph, a/k/a Mark Wallace, a/k/a Mark Greenwhich,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Newport News. Raymond A. Jackson, District Judge. (4:17-cr-00045-RAJ-RJK-1; 4:17-
cr-00045-RAJ-RJK-3; 4:17-cr-00045-RAJ-RJK-2)
Argued: January 28, 2020 Decided: April 24, 2020
Before NIEMEYER, AGEE, and RICHARDSON, Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opinion, in which Judge Niemeyer
joined. Judge Richardson wrote a concurring opinion.
ARGUED: Jeffrey Michael Brandt, ROBINSON & BRANDT, PSC, Covington,
Kentucky; Trey R. Kelleter, KELLETERLAW PC, Norfolk, Virginia; Andrew Michael
Sacks, SACKS & SACKS, Norfolk, Virginia, for Appellants. Aidan Taft Grano, OFFICE
OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON
BRIEF: Dana R. Cormier, DANA R. CORMIER, PLC, Staunton, Virginia, for Appellant
Mark Wallace. G. Zachary Terwilliger, United States Attorney, Howard J. Zlotnick,
Assistant United States Attorney, Lisa R. McKeel, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
2
AGEE, Circuit Judge:
A federal jury convicted Joseph Benson, Bryan Brown, and Mark Wallace (the
“Defendants”) of aiding and abetting the use of a firearm in a crime of violence resulting
in murder, in violation of 18 U.S.C. §§ 924(c)(1) and (j) and 2. The Defendants appeal,
contending that the district court erred in failing to exclude testimony concerning certain
codefendant statements. Benson also argues that the court improperly permitted the
Government to make prejudicial remarks during its closing argument, and incorrectly
instructed the jury to ignore dismissed state charges. And Wallace contests the sufficiency
of the Government’s evidence, as well as the constitutionality of his conviction.
As an initial matter, we conclude the district court did not err in permitting the
challenged testimony under either Federal Rule of Evidence 801(d)(2)(A) or 804(b)(3), and
that even if the court erred, it was ultimately harmless. Next, we reject Benson’s challenges
because the Government’s closing argument did not prejudice his substantial rights, and
the jury instruction accurately reflected the law. Finally, we affirm Wallace’s conviction
because the Government presented sufficient evidence that he had advance knowledge that
a codefendant would carry a gun, and the predicate offense of Hobbs Act robbery
constituted a valid crime of violence for the purposes of a § 924(c)(1) conviction. We
therefore affirm all three convictions.
I.
A.
3
On the morning of March 13, 2009, Louis Joseph, Jr. was at home in Newport News,
Virginia, babysitting his girlfriend’s five-year-old son, J.W, when two men entered through
the front door, pushed Joseph to the ground, and instructed J.W. to go to the bedroom.
While there, J.W. heard two gunshots. After J.W. emerged to check on Joseph, he
misunderstood Joseph’s direction to seek help and instead returned to the bedroom. When
his mother returned home from work around 4:00 p.m., she found Joseph lying on the back
patio. Shortly after she called emergency services, first responders arrived and pronounced
Joseph dead. He had been shot five or six times, with lethal wounds in his stomach, lungs,
ribs, and his thigh’s femoral vein.
B.
In October 2017, a federal grand jury returned a superseding indictment naming
Benson, Brown, Wallace, and a fourth codefendant, Rosuan Kindell, in connection with
Joseph’s death. Each was charged with aiding and abetting the use of a firearm in relation
to a crime of violence 1 resulting in murder, in violation of 18 U.S.C §§ 924(c)(1) and (j)
and 2. The four had only been connected loosely prior to Joseph’s death: Wallace and
Brown were both from the Hampton Roads area of Virginia and knew one another, while
Benson and Kindell were both from Boston, Massachusetts and also knew each other. In
turn, Wallace’s cousin had introduced him to Kindell. Brown had no prior connection with
Kindell or Benson.
1
Here, the underlying crime of violence was Hobbs Act robbery, in violation of 18
U.S.C. § 1951(a).
4
Following a joint trial, a jury acquitted Kindell, but convicted Benson, Brown, and
Wallace. Those three Defendants now appeal the district court’s decision to permit
cooperating witnesses to testify as to their codefendants’ out-of-court statements. In
addition, Benson asserts error in the Government’s closing arguments and jury instructions
issued in relation to certain state charges. Wallace challenges the sufficiency of the
Government’s evidence with respect to, and the constitutionality of, his conviction.
At the outset, we review the Government’s trial evidence, which can be grouped
into four sets: (1) the crime scene investigation; (2) cell phone records, including call
records and cell-site location information (“CSLI”); (3) a New York gun trafficking
investigation; and (4) statements made by the Defendants to cooperating witnesses.
1.
As an initial matter, the crime scene investigation revealed that Joseph’s front door
had been forced open. In turn, investigators recovered 0.40 caliber cartridge cases and a
copper-jacketed bullet, while the autopsy revealed additional copper-jacketed bullets.
Investigators also found blood on a chair in the residence. Based on a DNA profile
developed from the blood sample, the forensics lab made a potential match with Benson.
As a result, the Newport News Police Department (“NNPD”) arrested Benson at his Boston
residence in January 2010, after which he was held on state charges at Newport News City
Jail. 2 And after receiving a DNA sample from Benson following his arrest, a technician
concluded that the blood taken from the chair matched Benson’s DNA profile.
2
The state charges were dismissed in December 2010.
5
2.
Phone records and CSLI—which were assessed by the Government’s forensics
experts—revealed the nature of the Defendants’ communications and tended to show that
Wallace was responsible for communicating amongst the Defendants. Specifically,
Benson’s and Kindell’s phones were repeatedly in touch with Wallace’s, as was Brown’s.
However, Brown’s phone did not reflect any communication with Benson or Kindell.
Further, these records and CSLI reflected the Defendants’ locations prior to
Joseph’s death. On March 11, 2009, two days before Joseph’s death, Wallace and Kindell
exchanged multiple calls. CSLI also revealed that Kindell and Benson traveled from
Boston to Williamsburg over the course of that day. And on the morning of March 13—
shortly before Joseph’s death—Wallace called Brown three times between 9:41 and 9:56
a.m. After that, Wallace’s phone moved from Williamsburg to Newport News and stopped
movement around 10:15 a.m. at Joseph’s home tower. 3 It remained there until around 10:35
a.m., when it moved into the Hampton Roads area.
Throughout that afternoon following Joseph’s death, Wallace repeatedly
communicated with the other Defendants. Further, Wallace’s afternoon travel included the
area of the Greyhound bus station. During this same time period, Kindell repeatedly called
Greyhound’s toll-free number (in addition to calls to Benson and Wallace). And although
Greyhound records showed that Kindell and Benson were originally scheduled to depart
3
An assessment of Joseph’s cell phone showed his “home tower”—that is, the one
most associated with his phone—was a specific one in Newport News. It also showed that
his phone stopped making outgoing transmissions around 10:12 a.m. on March 13.
6
on March 14 and 20, respectively, CSLI and Greyhound tickets showed the two men
accelerated their departure and left for Boston at 10:20 p.m. on the evening of March 13.
3.
In the meantime, as part of a separate New York gun trafficking investigation, a
New York City police detective listened to a wiretapped phone call around 6:15 p.m. on
March 13, the day of Joseph’s death. On the call, Brown offered to sell his New York
contact two firearms: a “Smith” that was his and a “Ruger.” J.A. 372. The next month, the
detective observed an undercover gun buy in which one of the gun traffickers sold an
undercover officer two 0.40 caliber, semi-automatic pistols—a Ruger P94 and a black CZ.
That black CZ pistol bore a stamp (“40 S&W”) indicating that the pistol fired 0.40 caliber
Smith & Weston ammunition—that is, it was a “Smith.” J.A. 389. In turn, microscopic
analysis confirmed that the cartridge cases and bullets recovered from the scene of Joseph’s
death were fired from those two guns.
4.
As noted previously, a number of witnesses testified about out-of-court statements
that the Defendants made to them regarding Joseph’s death.
a.
About a week after Joseph’s death, Brown spoke with his friend, Brandon Douglas,
who became a cooperating witness. According to Douglas, Brown asked him for a ride.
When Douglas asked about the whereabouts of Brown’s truck, Brown responded that “it
was hot, meaning that the police was looking for it,” further explaining that his truck had
been involved in a “robbery” that “didn’t go as planned, that it went wrong.” J.A. 669–70.
7
Although, Brown told Douglas, the incident had originally been planned as “[j]ust a
breaking and entering” by Brown and two others—who “had been doing homework” on
Joseph—Wallace “took it over” because “he could execute it better” and brought in two
men from Boston. J.A. 671–73. The Defendants then took Brown’s truck to Joseph’s
residence, where the “two Boston dudes” approached the front door with Brown behind
them. J.A. 674. According to Douglas, Brown stated that these men then broke down the
door and went inside “[g]ung ho,” after which Brown heard gunfire and ran back to the
truck. J.A. 675.
b.
In turn, Wallace spoke with two law enforcement officers over the course of a 2012
investigation into Joseph’s death. NNPD Detective Erik Kempf testified at trial that on
three occasions between March and April 2012, Wallace called him to discuss his
participation in the offense. On March 20, Wallace stated that he “was just a thief and that
this particular incident was supposed to be a burglary.” J.A. 621. On April 11, Wallace told
Detective Kempf that “he and others . . . took Bryan Brown’s truck” to Joseph’s house.
J.A. 622.
Similarly, FBI Agent Jean Andersen testified that on April 5, Wallace told her that
he “wanted to talk about the murder because it was the right thing to do.” J.A. 810. Wallace
then told her that “he did not go into the house where the murder occurred but he was there
out front in a car” and that “he was shot at by the people who committed the murder and
that the bullet hit the metal part of the seat belt and it bounced off.” J.A. 810.
c.
8
Finally, Benson also made statements to three cooperating witnesses. First, Wayne
Turner shared a cell with Benson in the Newport News City Jail. According to Turner,
Benson asked if Turner knew Wallace and Brown, stating that “they did the joint he was
locked up for.” J.A. 753. He also said he didn’t like “messing around with drugs, because
people tell on you,” and that “he’d rather do robberies.” J.A. 754. Benson also noted that
Wallace had “brought him and his man down [from Boston] to do some licks”—that is,
“[a] robbery.” J.A. 754.
Second, Brenda Rivera, Benson’s family friend, visited him in May 2010 while he
was in the Jail. During her visit, Benson told her that he was in Newport News “last year
for two days . . . just two days only” “[w]ith a dude from up my way” who “knew some
dudes down here.” Ex. 114A. He stated that he was “doing something [he] wasn’t supposed
to do,” Ex. 114A, but further clarified that he “didn’t do nothing.” J.A. 765.
Third, Willie Berry testified that he knew both Kindell and Benson in Boston. A
few weeks before the March 13 incident, Benson asked Berry for a gun. And while Berry,
Benson, and Kindell were together in Boston, Kindell asked Berry to ride to Virginia with
them to conduct a robbery; Berry declined. After their return to Boston, Benson told Berry
that during the robbery, he “went inside and things got ugly and the person got shot.” J.A.
785. He also observed that there had been a child in the house. 4
C.
4
Berry also testified that Kindell recounted that he and Benson had gone “inside the
house,” that “they got into a tussle,” and that “after the tussle things got ugly and somebody
got shot.” J.A. 783–84. Kindell also stated to Berry that Benson’s blood was in the house.
9
The Defendants generally challenged this witness testimony under the
Confrontation Clause insofar as the out-of-court statements made by each Defendant
named and thereby implicated other Defendants. See Bruton v. United States, 391 U.S. 123
(1968) (holding that the admission of a non-testifying codefendant’s out-of-court statement
inculpating a defendant by name violated a defendant’s right to confront witnesses against
him or her). Further, according to the Defendants, the statements were not admissible under
any hearsay exception.
In response, the Government argued the statements were nontestimonial and thus
did not implicate the Confrontation Clause. In support, it advanced two bases for
admissibility: as (1) opposing party statements pursuant to Federal Rule of Evidence
801(d)(2)(A) and (2) statements against interest pursuant to Rule 804(b)(3). The
Government acknowledged that if admitted as opposing party statements, the testimony
would require limiting instructions confining the consideration of such statements solely
against the declarant. And if admitted as statements against interest, they would require
corroborating circumstances indicating their trustworthiness.
The district court generally agreed that there was no Confrontation Clause issue for
any of the witness statements. It also addressed admissibility under Rule 801 or 804—
including the necessity of limiting instructions—on a case-by-case basis as to each witness.
Further, as part of the final charge, the court also gave three general jury instructions. First,
the court charged the jury “to give separate and personal consideration to the case of each
individual defendant,” “leaving out of consideration entirely any evidence admitted solely
against some other defendant or defendants.” J.A. 977–78. Second, it charged that “[e]ach
10
defendant is entitled to have his case determined from evidence as to his own acts,
statements, and conduct and other evidence in the case which may be applicable to him.”
J.A. 978. Third, the court repeated limiting instructions about codefendant statements. 5
Now, in addition to contesting such testimony, the Defendants appeal other asserted
errors related to the Government’s closing arguments; jury instructions; and the sufficiency
of the evidence. 6 This Court has jurisdiction pursuant to 28 U.S.C. § 1291.
II. Admission of Codefendant Statements
We begin with the Defendants’ challenges to the district court’s admission of their
codefendants’ out-of-court statements. Specifically, the Defendants challenge statements
made to five witnesses: Douglas, Detective Kempf, Turner, Berry, and Rivera.
This Court reviews evidentiary decisions for an abuse of discretion but legal
conclusions concerning the Federal Rules of Evidence or Constitution de novo. United
States v. Landersman, 886 F.3d 393, 413 (4th Cir. 2018). Even if an evidentiary error
implicates a defendant’s constitutional rights, the Court reviews “that error for
harmlessness.” United States v. Poole, 640 F.3d 114, 118 (4th Cir. 2011); see also United
States v. Clarke, 2 F.3d 81, 85 (4th Cir. 1993) (noting that the Court need not resolve an
alleged Bruton violation when the alleged error is harmless).
5
In addition, following Benson’s closing argument, Brown’s counsel moved for a
mistrial, arguing that the Government had used evidence outside the limiting instructions.
The court denied the motion, noting it had given a cautionary instruction to the jury to
disregard any potentially misstated evidence.
6
Wallace requested dismissal of the indictment or a new trial. Benson and Brown
requested vacatur of their convictions and a new trial.
11
As noted, the Defendants challenge these codefendant statements on the basis that
that the statements (1) violated the Confrontation Clause and/or (2) were generally
inadmissible under the Federal Rules of Evidence. The first type of challenge is governed
by Bruton, which held that a defendant is deprived of his Sixth Amendment right of
confrontation when the facially incriminating testimonial statement 7 of a non-testifying
codefendant is introduced at their joint trial, even if the jury is instructed to consider the
confession only against the codefendant. 391 U.S. at 126; see id. at 135–37 (“[W]here the
powerfully incriminating extrajudicial statements of a codefendant . . . are deliberately
spread before the jury in a joint trial . . . we cannot accept limiting instructions as an
adequate substitute for [the defendant’s] constitutional right of cross-examination.”).
Richardson v. Marsh made clear that Bruton’s rule was a narrow one. 481 U.S. 200
(1987). If the statement of a non-testifying codefendant incriminates another only by virtue
of linkage to other evidence at trial—that is, if it incriminates “inferential[ly]” rather than
“facially”—then it does not implicate Bruton. Id. at 208–09. Nonetheless, a confession may
still be facially incriminatory—and thus inadmissible even with a limiting instruction—
where the inferences required to link the statement to the defendant are of the type “that a
jury ordinarily could make immediately, even were the confession the very first item
introduced at trial.” Gray v. Maryland, 523 U.S. 185, 196 (1998). Ultimately, when Bruton
7
“The primary determinant of a statement’s testimonial quality is whether a
reasonable person in the declarant’s position would have expected his statements to be used
at trial—that is, whether the declarant would have expected or intended to bear witness
against another in a later proceeding.” United States v. Dargan, 738 F.3d 643, 650 (4th Cir.
2013) (internal quotation marks omitted).
12
is not implicated, the assumption is that jurors follow any limiting instructions, including
considering an opposing party statement strictly against the party who made it. Richardson,
481 U.S. at 208–09.
In turn, as noted above, the district court concluded the challenged testimony (1) did
not implicate Bruton and (2) was admissible either as an opposing party statement under
Rule 801(d)(2)(A) or a statement against interest under Rule 804(b)(3). Rule 801(d)(2)(A)
provides that a statement is not hearsay if “the statement is offered against an opposing
party” and “was made by [that] party in an individual or representative capacity.” Thus, a
defendant’s own statements constitute “admissions by a party-opponent and [are]
admissible pursuant to” this Rule. United States v. Wills, 346 F.3d 476, 489 (4th Cir. 2003);
see also United States v. Jones, No. 19-4090, 2019 WL 6724464, at *3 (4th Cir. Dec. 11,
2019) (unpublished) (concluding defendant’s “out-of-court statement that he was involved
in [the victim’s] murder” constituted a “statement made by a party and offered against that
party”). Meanwhile, Rule 804(b)(3) provides for an exception to the hearsay rule for
statements that (1) a “reasonable person in the declarant’s position would have made only
if the person believed it to be true because, when made, it was so contrary to the declarant’s
proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s
claim against someone else or to expose the declarant to civil or criminal liability” and (2)
“is supported by corroborating circumstances that clearly indicate its trustworthiness, if it
is offered in a criminal case as one that tends to expose the declarant to criminal liability.”
In sum, we conclude that none of the admitted statements presented a Bruton issue,
and that they were all properly admitted under either Rule 801(d)(2)(A) or 804(b)(3). To
13
the extent such admission did constitute error, however, we conclude that any error was
harmless given the scope of the properly admissible evidence against each Defendant. 8
A. Benson and Wallace’s Challenge to Douglas’s Testimony
At trial, Douglas—Brown’s friend who had given him a ride a week after Joseph’s
death—testified that Brown had complained to him that Wallace had taken over the robbery
and brought in two “Boston dudes,” further describing how he had accompanied them to
Joseph’s front door. J.A. 670. Following Douglas’s testimony, the court concluded that
Brown’s statement was nontestimonial and therefore did not implicate Bruton. Further, the
court instructed the jury that the testimony could only be considered against Brown as an
opposing party statement under Rule 801(d)(2)(A), not against any other codefendant. 9
On appeal, Benson, one of the Defendants from Boston, argues that the testimony
violated Bruton because it improperly implicated him. He also argues it constituted
inadmissible hearsay. Further, both Benson and Wallace argue that Douglas’s testimony
was so prejudicial that it violated their rights to a fair trial.
We disagree. As an initial matter, Bruton does not apply here because the
Confrontation Clause is only implicated in the context of testimonial statements. Dargan,
8
See Thigpen v. Roberts, 468 U.S. 27, 30 (1984) (“[W]e may affirm on any ground
that the law and the record permit and that will not expand the relief granted below.”);
United States v. Smith, 395 F.3d 516, 519 (4th Cir. 2005) (“We are not limited to evaluation
of the grounds offered by the district court to support its decision, but may affirm on any
grounds apparent from the record.”).
9
Specifically, the court instructed the jury that “you may only consider [Douglas’s]
testimony about what Brown said against Brown. You may not consider any testimony he
provided about what Brown said other co-defendants did against another co-defendant,
only against Brown[.].” J.A. 718.
14
738 F.3d at 651 (“Bruton is simply irrelevant in the context of nontestimonial statements.”);
see also Ohio v. Clark, 135 S. Ct. 2173, 2180 (2015). Brown’s statements to Douglas were
non-testimonial. Douglas was a longtime personal friend of Brown, and their conversation
occurred “maybe a week or more” after Joseph’s death, in Douglas’s car. J.A. 668. And
because “testimonial evidence does not include statements made to friends in an informal
setting,” United States v. Alvarado, 816 F.3d 242, 252 (4th Cir. 2016), any Bruton
challenge presented by Benson is unavailing.
Further, we conclude the testimony was properly admitted as an opposing party
statement against Brown alone. And because Douglas’s testimony was admitted against
only Brown, it was not part of the body of evidence that the jury could consider in assessing
the guilt of Benson or Wallace. Cruz v. New York, 481 U.S. 186, 190 (1987). 10 Thus, we
can only reverse if there is some specific reason to doubt that the jury adhered to the district
court’s limiting instruction. But we must presume the jury followed the district court’s Rule
10
The district court considered admitting Douglas’s testimony as a statement against
interest under Rule 804(b)(3) “if there [was] sufficient corroborative evidence in the record
with respect to what [Brown] says about Wallace.” J.A. 262. However, the court never
ruled it was admitting the evidence under Rule 804(b)(3).
To the extent Wallace and Benson challenge the admission of Douglas’s testimony
under Rule 801(d)(2)(A) as insufficient to cure any prejudice against them, we conclude
that the district court’s admission of Douglas’s testimony under Rule 804(b)(3) would have
been sufficient to cure any evidentiary error given that, under Rule 804(b)(3), limiting
instructions are unnecessary and there was sufficient corroborative evidence in the record
regarding Wallace and Benson. Cf. United States v. Barbee, 524 F. App’x 15, 18–19 (4th
Cir. 2013) (noting the requirements of Rule 804 need not be met where Rule 801 is
satisfied). Ultimately, however, we conclude any evidentiary error, regardless of whether
it sounds in Rule 801 or 804, was harmless given the extent of the Government’s other
evidence against Wallace and Benson. See Thigpen, 468 U.S. at 30.
15
801 instruction. Richardson, 481 U.S. at 206–08 (observing courts apply an “almost
invariable assumption of the law that jurors follow their instructions”). To overcome this
presumption, Benson and Wallace would have to demonstrate not only that the jury was
unable to follow the court’s instructions but also that the evidence was highly prejudicial.
Greer v. Miller, 483 U.S. 756, 766 n.8 (1987). But it is highly unlikely the jury would have
been confused because the court offered (1) contemporaneous limiting instructions with
respect to Douglas’s testimony and (2) three general limiting instructions in the final
charge. Benson and Wallace have offered no reason to conclude the jury disregarded
them. 11
Further, even if the admission of Douglas’s testimony somehow amounted to error,
any abuse of discretion in admitting it was harmless given the abundance of other evidence
presented against Benson and Wallace. See Sullivan v. Louisiana, 508 U.S. 275, 279 (1993)
(harmless error review requires consideration of “what effect [the asserted constitutional
error] had upon the guilty verdict”); Brown v. United States, 411 U.S. 223, 231 (1973)
(finding Bruton error harmless where the erroneously-admitted evidence was “merely
cumulative of other overwhelming and largely uncontroverted evidence properly before
the jury”); United States v. Basham, 561 F.3d 302, 327 (4th Cir. 2009) (“Erroneously
admitted evidence is harmless if a reviewing court is able to say, with fair assurance, after
pondering all that happened without stripping the erroneous action from the whole, that the
judgment was not substantially swayed by the error.” (internal quotation marks omitted)).
11
Kindell’s acquittal lends further support to the notion that the jury followed the
court’s instructions.
16
Here, the Government’s case rested on the Defendants’ own admissions, reliably
corroborated by other evidence, including forensic evidence in the form of DNA samples
and phone and bus records. As to Benson, the jury heard about his statements to Berry
before the crime asking for a gun and his statements after the crime discussing the robbery
(in which he described a struggle inside Joseph’s residence and seeing a child). The jury
also heard about his conversation with Rivera, in which he admitted to coming down to
Virginia with somebody else from Boston. Further, the Government presented evidence of
Benson’s DNA inside Joseph’s house; CSLI illustrating Benson’s travel from Boston to
Virginia with Kindell; phone records showing communications with Wallace and Kindell
around the time of Joseph’s death; and the abrupt change in his return ticket after Joseph’s
death. And as to Wallace, the Government presented evidence of his cell phone
communications with his codefendants, the CSLI showing his location, and his admissions
to law enforcement that he was present for the robbery. In sum, we conclude the admission
of Douglas’s testimony was harmless as to Benson and Wallace.
B. Brown’s Challenge to Detective Kempf’s Testimony
We turn next to Detective Kempf’s testimony recounting his conversation with
Wallace, in which Wallace stated that “he and others . . . took Bryan Brown’s truck” to
Joseph’s home. J.A. 622. Although Brown objected to this statement, the district court
concluded it was “non-testimonial” and did not present a Bruton issue. J.A. 622. Brown’s
counsel thereafter requested a limiting instruction, which the court deferred ruling on to
“the end of the case if it’s necessary.” J.A. 624. Over the course of the rest of the trial, the
court did not specifically mention Detective Kempf’s testimony. However, as noted earlier,
17
it gave a general limiting instruction that the jury consider the statements made by each
Defendant as evidence only against that Defendant. Brown now argues that the statement
amounted to a Bruton violation and an abuse of discretion.
Although it is a close question, we agree that the statement did not present a Bruton
issue because it was not facially incriminating as to Brown. To implicate Bruton, a
statement cannot incriminate “inferentially”—that is, “only when linked with evidence
introduced later at trial.” Richardson, 481 U.S. at 208. Although Brown asserts that the
statement unambiguously named him as a participant in the crime, we agree with the
Government that this characterization overstates the testimony. Wallace merely observed
that “he and others . . . took Bryan Brown’s truck” to Joseph’s home. Left unsaid was
whether Brown was physically present in the truck or at the house, or that Brown approved
or even knew of Wallace’s use of his truck.
At most, there was the possibility that the jury might infer that because Brown’s
truck was involved, so was he. But the mere possibility of Brown’s involvement does not
mean that Wallace’s statement was facially incriminating. To have been incriminating in a
Bruton sense, the statement must have obviously referred to Brown’s direct participation
in the offense. Richardson, 481 U.S. at 208. For example, this Court has concluded that a
co-conspirator’s post-arrest statement to a special agent—which generally discussed his
use of his backyard shed as a contraband storage facility and noted that he had known the
defendant, a next-door neighbor, his entire life—was not facially incriminating because it
could not “be said to suggest that [the defendant] engaged in any crimes.” United States v.
Locklear, 24 F.3d 641, 645–46 (4th Cir. 1994). Similarly, the Ninth Circuit has concluded
18
that a codefendant’s testimony failed to facially incriminate because “when [the
codefendant] did insert [the defendant] into his narrative, he never claimed [the defendant]
seized, detained, threatened, injured, or demanded ransom for any of the victims,” as
required for the offense of conspiracy to commit hostage taking. United States v. Mikhel,
889 F.3d 1003, 1045 (9th Cir. 2018) And the Fifth Circuit has declined to find a Bruton
issue even where a non-testifying co-conspirator’s statements placed the defendant at the
scene of the crime because the statement itself was “utterly silent as to [the defendant’s]
whereabouts and activities” during the offense and would require several inferential jumps
to arrive at the defendant’s participation in offense. United States v. Lage, 183 F.3d 374,
387 (5th Cir. 1999). Here, even if Wallace’s statements tended to corroborate that Brown
had, at a minimum, given his truck to the codefendants and, at most, been present at the
crime scene, it would not have been sufficient by itself to establish his participation in the
offense because it would have required linkage to additional evidence. See also Mikhel,
889 F.3d at 1045 (rejecting the argument that codefendant testimony “corroborated the
government’s evidence against” the defendant because none of the evidence “on its own,
directly established that” the defendant had engaged in the offense).
But even if we were to assume a Bruton error here, it would be harmless. Brown
himself admitted to Douglas that he owned the truck used to transport the Defendants to
Joseph’s house; that he helped to plan the crime; and that he was present when the other
participants kicked the front door in (a description corroborated by crime scene
investigators). Brown’s own statements thus subsumed Wallace’s passing reference to his
truck by supplying far more incriminating information. And the Government presented
19
additional evidence that Brown armed and transported his codefendants—including his
wiretap statement that he owned one of the firearms used to kill Joseph and his sale of the
weapon—and his repeated communications with Wallace (the chief organizer) directly
before and after the murder. 12
C. Brown and Wallace’s Challenge to Turner’s Testimony
We turn next to the testimony of cooperating witness Turner, who was Benson’s
cellmate at the Newport News City Jail. According to Turner’s trial testimony, Benson told
him that he came down from Boston to conduct a robbery, and that Brown and Wallace
“did the joint [Benson] was locked up for.” J.A. 753. Following Turner’s testimony, the
court instructed the jury that it could “consider the witness’s testimony about what Mr.
Benson said about himself” solely against Benson, and could not consider “what he said
other co-defendants may or may not have done or said.” J.A. 761.
On appeal, Brown and Wallace argue that the admission of Benson’s statements
violated Bruton. We disagree, concluding that statements to a cellmate are plainly non-
testimonial and thus do not implicate Bruton. Dargan, 738 F.3d at 650–51 (“[S]tatements
from one prisoner to another are clearly nontestimonial.” (internal quotation marks
omitted)). In turn, the district court admitted the statements with a Rule 801 limiting
instruction. And given that Brown and Wallace have offered no reason to conclude the jury
12
To the extent Brown asserts an evidentiary error, we disagree, concluding
Wallace’s statement was admissible under Rule 801 on the basis of the district court’s
general limiting instruction. Smith, 395 F.3d at 519 (affirming “on any grounds apparent
from the record”). Further, even assuming an evidentiary error, it was harmless.
20
disregarded the instruction, we must assume that the jurors followed it. Richardson, 481
U.S. at 206, 211.
Finally, even if the admission of this statement amounted to an evidentiary error, it
would be harmless. Landersman, 886 F.3d at 413 (noting a non-constitutional evidentiary
error is harmless if the “judgment was not substantially swayed by the error”). As discussed
at length above, the Government presented substantial evidence of the involvement of both
Brown and Wallace in the offense, including their own admissions.
D. Wallace’s Challenge to Berry’s Testimony
We next consider the admission of Berry’s testimony, which described his
conversations with Benson and Kindell before and after their participation in the offense.
Following Berry’s testimony, the district court stated it was “not issuing a limiting
instruction on this witness” because his testimony “would clearly fall under [Rule]
804(b)(3)” and “this record is sufficiently full of independent corroboration.” J.A. 800. 13
Wallace challenges the admission of this testimony, claiming it was highly prejudicial.
We reject Wallace’s challenge. As an initial matter, we conclude there was no
Confrontation Clause issue because the statements to Berry were non-testimonial.
Alvarado, 816 F.3d at 252 (concluding “testimonial evidence does not include statements
made to friends in an informal setting”). Thus, to the extent Wallace can argue error, it can
only be an evidentiary one. But we agree with the district court that the statements made
13
Specifically, the court observed “his testimony involved testimony directly about
what two co-defendants said, and, to the extent he mentioned another co-defendant here,
this record is sufficiently full of independent corroboration.” J.A. 800.
21
by Benson and Kindell were statements against interest under Rule 804(b)(3) and were
sufficiently corroborated by the record. Further, any evidentiary error would have been
harmless because of all of the other evidence, as noted, that was presented against Wallace.
We therefore conclude the district court did not err in admitting Berry’s testimony.
E. Wallace’s Challenge to the Tape of Rivera’s Visit to the Jail
Finally, we conclude the district court did not err in admitting the tape recording of
the conversation between Rivera and Benson, in which Benson admitted to being in
Newport News at the time of the murder. During trial, Wallace requested a limiting
instruction as to this tape. The district court declined, stating it did not believe a limiting
instruction was “necessary in this case.” J.A. 767. Although the court did not specify the
basis for declining to issue a limiting instruction, we agree that the tape of the conversation
between Rivera and Benson constituted a statement against Benson’s interest under Rule
804(b)(3), which the court had generally considered earlier. This conversation was further
corroborated by the evidence in the record. United States v. Dorsey, 45 F.3d 809, 814 (4th
Cir. 1995) (noting the Court may affirm an evidentiary record on any basis apparent in the
record). And, for the reasons discussed previously, any error as to Wallace was harmless.
***
In sum, we conclude that the challenged statements were properly admitted under
either Rule 801(d)(2)(A) or 804(b)(3). To the extent there was any error, it was harmless.
III. Benson’s Challenge to the Government’s Closing Argument
22
We turn now to Benson’s contention that the Government’s closing argument
constituted prosecutorial misconduct because it invoked Douglas’s testimony on three
occasions to establish Benson’s guilt. In all three instances, the Government reiterated that
Douglas’s testimony was admissible only against Brown. Nonetheless, according to
Benson, the statements all improperly referenced him in violation of his due process right
to a fair trial, with the district court compounding the error by failing to declare a mistrial.
We disagree. Although some of the Government’s closing came close to improperly
arguing Benson’s guilt, we conclude the Government did not engage in prosecutorial
misconduct. When a defendant alleges prosecutorial misconduct, it must have “so infected
the trial with unfairness as to make the resulting conviction a denial of due process.” United
States v. Caro, 597 F.3d 608, 624 (4th Cir. 2010). Specifically, “the defendant must show
(1) the prosecutor’s remarks or conduct were improper and (2) that such remarks or conduct
prejudicially affected his substantial rights so as to deprive him of a fair trial.” Id. (internal
quotation marks omitted). Neither requirement is met here.
We first consider whether the remarks were improper. We agree with the
Government’s view that the first comment was properly directed to arguing Brown’s role
in the offense supplying firearms. Specifically, the Government argued:
Brown, also an aider and abettor, he has a role. . . . He arms one of the
suspects, at least one of them, beforehand. . . . [H]e is providing
transportation, he’s providing a gun. . . .
[Y]ou heard Brandon Douglas testify, and this was testimony against Brown,
with the Court’s limiting instruction, that he was at the scene and he armed
at least one of the people. They didn’t have guns. We know that when Benson
came down here [Brown was at the scene and armed at least one of the
people].
23
J.A. 853–54. Read in context, it is apparent that the Government was arguing that the jury
was permitted to conclude that Brown had supplied the guns based on: (1) Brown’s
admission to owning one of the murder weapons and (2) the inference that his codefendants
did not have guns before coming to Virginia. 14 See United States v. Abu Ali, 528 F.3d 210,
243 (4th Cir. 2008) (noting prosecutor’s closing arguments must be “[t]aken in context”).
Thus, any reference to Douglas’s testimony was properly in the context of arguing Brown’s
guilt.
With respect to the second comment, the Government stated that Douglas’s
testimony showed that Brown was with the “Boston Boys” at the robbery, then
immediately noted, “We know who the Boston Boys are[.]” J.A. 856. We observe that
these two statements, coupled together, could be construed as using Douglas’s testimony
as further evidence of Benson’s guilt. Nonetheless, we conclude they do not warrant
reversal. As an initial matter, the reference to the “Boston Boys” occurred while the
Government was arguing the circumstantial evidence supporting Brown’s guilt, not
Benson’s. Specifically, the Government’s references to the “Boston Boys” corroborated
Brown’s statements to Douglas with reference to other admissible evidence, including that
two men from Boston were present. Further, it is clear, given all the other admissible
evidence against him, that this comment did not prejudice Benson. United States v. Scheetz,
14
The Government expressly noted this inference to the jury: “[Y]ou heard
testimony today from Willie Berry that Benson was asking him for a firearm; therefore,
you can infer that he did not have a firearm when he left Boston.” J.A. 855.
24
293 F.3d 175, 186 (4th Cir. 2002) (“Most importantly, absent the prosecutor’s improper
remark, the government’s case against [the defendant] was overwhelming.”).
The third comment occurred while the Government was arguing that Brown was
aware that the crime was an armed robbery as there would be no reason to bring others
down from Boston to commit a simple burglary. 15 Specifically, the Government observed
how Brown knew details about the planning of the crime: “[A]s we heard again, evidence
admissible against Brown, through Douglas, he told him that this was taken over. And
again, we know the link between Kindell, Wallace, and we know that . . . Kindell had the
link and the contacts with . . . Benson.” J.A. 858. 16 Thus, the Government appropriately
linked Brown’s statements to other admissible evidence—such as the connection between
Wallace, Kindell, and Benson, as well as Benson’s request for a gun—to argue that Brown
knew that the plan called for an armed robbery, not just a burglary. Given this, and that the
Government mentioned the appropriate instructions, the comments were not improper. 17
15
The Government was entitled to argue this inference to fulfill the elements for an
aiding and abetting conviction—specifically, as discussed below, that a defendant had to
have advance knowledge that a codefendant would be armed.
16
The Government also submitted: “It was a robbery, ladies and gentlemen, before
[Benson and Kindell] left Massachusetts. Otherwise, why is Benson asking Berry for a
gun?” J.A. 858.
17
With respect to the second prong of the prosecutorial misconduct test, the Court
considers: (1) the degree to which the remarks had a tendency to mislead the jury and to
prejudice the accused; (2) whether the remarks were isolated or extensive; (3) absent the
remarks, the strength of competent proof introduced; (4) whether the comments were
deliberately placed to divert attention; (5) whether the remarks were invited by improper
defense conduct; and (6) whether curative instructions were given. United States v. Lopez,
860 F.3d 201, 215 (4th Cir. 2017). As to the first, third, and sixth factors, there was no
prejudice, particularly when considered in light of the admissible evidence against Benson
(which established the same facts that Benson complains were improperly linked to him in
25
Finally, this Court has concluded that curative instructions eliminate prejudice from
improper closing arguments even when comments are both “misleading and extensive.”
United States v. Chong Lam, 677 F.3d 190, 204 n.13 (4th Cir. 2012). Here, the district court
instructed the jury continuously on the evidentiary limitations, both specifically as to
Douglas’s testimony and generally, and also instructed the jury that “[s]tatements and
arguments of counsel are not evidence in the case[.]” J.A. 978. Given that Benson has
presented no credible arguments to rebut the presumption that the jury followed these
instructions, there is no cognizable error in the Government’s closing argument.
IV. Benson’s Challenge to the State Charge Jury Instruction
Next, we consider Benson’s argument that the district court improperly charged the
jury to ignore the 2010 dismissal of his state charges. During trial, a former detective
testified that the state charges brought against Benson in connection with the murder were
dismissed. In closing, Benson’s counsel argued that the DNA evidence with respect to the
blood sample was unreliable and that the cooperating witnesses were not credible. Counsel
then suggested that because the state prosecutor had previously considered substantially
the same evidence, the prosecutor’s dismissal of the charges in state court—and the dearth
of new evidence developed since then—demonstrated reasonable doubt. Afterwards, the
district court observed that the invocation of the dismissal “[left] an impermissible
the Government’s closing). With respect to the second, the challenged comments were
isolated, amounting to three allegedly improper statements in arguments directed toward a
different defendant. Finally, the fourth and fifth factors appear irrelevant. Thus, Benson’s
substantial rights were not affected.
26
inference in this case that Mr. Benson shouldn’t be here because they dismissed the charges
in Newport News.” J.A. 891. The court sua sponte instructed jurors that “the dismissal of
charges in the state court has no role in your decision about what the verdict should be in
this case; it’s irrelevant in terms of what you have to decide in this case.” J.A. 895. Benson
now challenges that instruction as depriving him of his constitutional right to a fair trial
because it denied him the ability to establish his defense.
Though constitutional claims are generally reviewed de novo, a defendant’s
argument that “he was not allowed to present a particular defense” is “better framed as an
evidentiary” one, subject to an abuse of discretion standard. United States v. Malloy, 568
F.3d 166, 177 (4th Cir. 2009). Similarly, this Court reviews “the district court’s decision
to give or refuse to give a jury instruction for abuse of discretion.” United States v. Passaro,
577 F.3d 207, 221 (4th Cir. 2009). Further, the court’s discretion to give such instructions
extends throughout the trial, even after closing. United States v. Muse, 83 F.3d 672, 676–
77 (4th Cir. 1996) (upholding the authority to give an “appropriate corrective instruction”
even after closing when counsel argued “an extraneous consideration”).
We conclude the instruction did not constitute an abuse of discretion. In reaching
this conclusion, we consider whether “the instructions accurately and fairly state the
controlling law.” Passaro, 577 F.3d at 221 (internal quotation marks omitted). And here,
we conclude that instruction accurately reflected the law because the state’s decision not
to prosecute did not make any fact material to the federal aiding and abetting charge more
or less probable. See Fed. R. Evid. 401 (describing relevant evidence as that which “has
any tendency to make a fact more or less probable than it would be without the evidence”);
27
Fed. R. Evid. 402 (observing “irrelevant evidence is not admissible”). Put another way, a
state’s decision to drop charges may have nothing at all to do with guilt or innocence,
particularly in relation to a federal crime with distinct elements. As other courts have
observed, non-prosecution decisions are irrelevant because they often take “into
consideration the availability of prosecutorial resources, alternative priorities, the
expectation of prosecution by other authorities, or any number of other valid discretionary
reasons.” United States v. Bingham, 653 F.3d 983, 999 (9th Cir. 2011). Other circuits have
uniformly upheld the exclusion of evidence of prior charging decisions because it “risks
misleading the jury and confusing the issues.” United States v. Reed, 641 F.3d 992, 993–
94 (8th Cir. 2011); cf. United States v. Halteh, 224 F. App’x 210, 214 (4th Cir. 2007)
(observing “the limited probative value of an acquittal on prior charges relating to the same
conduct at issue in a later trial may be substantially outweighed by the danger of unfair
prejudice or jury confusion”); United States v. De La Rosa, 171 F.3d 215, 220 (5th Cir.
1999) (citing seven circuits who agree “evidence of prior acquittals are generally
inadmissible”).
Benson also argues the court’s curative instruction prejudiced him by excluding the
argument after his closing. But a curative instruction to ignore an “extraneous
consideration” introduced by a defendant’s closing argument is well “within this court’s
discretion.” Muse, 83 F.3d at 677; see also United States v. Baptiste, 596 F.3d 214, 226
(4th Cir. 2010) (observing trial judges have “broad discretion” to control closing
arguments). Further, Benson was not prejudiced because the instruction did not prevent
him from raising his defenses, which focused on purported evidentiary gaps, the lack of
28
cooperating witnesses’ credibility, and the unreliability of the DNA evidence. And because
his underlying argument—that the evidence did not overcome reasonable doubt—
remained fully viable, the instruction did not violate his constitutional rights. 18
V. Wallace’s Challenges to His Conviction
A. Sufficiency of the Government’s Evidence as to Wallace’s Foreknowledge
Finally, we consider two challenges Wallace mounts as to his conviction. As an
initial matter, Wallace argues his conviction must be overturned because the Government
presented insufficient evidence of his foreknowledge that a codefendant would be armed.
To prove aiding and abetting under § 924(c), the Government must show “that the
defendant actively participated in the underlying . . . violent crime with advance knowledge
that a confederate would use or carry a gun during the crime’s commission.” Rosemond v.
United States, 572 U.S. 65, 67 (2014) (emphasis added). Rosemond emphasized that the
defendant’s advance knowledge must come at a point at which “the accomplice can do
something with it—most notably, opt to walk away.” Id. at 78. By “deciding . . . to go
ahead with his role in the venture[,] that shows his intent to aid an armed offense.” Id. 19
18
And although Benson argues that the Constitution guarantees criminal defendants
a meaningful opportunity to present a complete defense, this right “is not absolute: criminal
defendants do not have a right to present evidence that the district court, in its discretion,
deems irrelevant or immaterial.” United States v. Prince-Oyibo, 320 F.3d 494, 501 (4th
Cir. 2003). For the reasons discussed, it is evident that the court deemed Benson’s defense
based on the dismissed charges irrelevant.
19
The district court also properly offered a Rosemond instruction, telling the jury it
must find “the defendant must have actively participated in the crime of violence with
advance knowledge that another participant would use or carry a firearm during and in
relation to, or possess a firearm in furtherance of the crime of violence.” J.A. 993.
29
Wallace’s conviction must be upheld if there is substantial evidence to support it.
Substantial evidence is “evidence that a reasonable finder of fact could accept as adequate
and sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt.”
United States v. Moye, 454 F.3d 390, 394 (4th Cir. 2006) (en banc) (internal quotation
marks omitted). In evaluating the evidence, this Court must “view the evidence in the light
most favorable to the [G]overnment, drawing all reasonable inferences in its favor” and
“assum[ing] the jury resolved all contradictions in testimony in favor of the
[G]overnment.” Id. Insufficient evidence may be found “only if no rational trier of fact
could have agreed with the jury.” Cavazos v. Smith, 565 U.S. 1, 2 (2011).
Here, the evidence of such advance knowledge need not be direct. Other circuits
have concluded that where there is evidence that a defendant extensively participated in
the planning of a robbery of the type that would generally necessitate the use of firearms,
such evidence is sufficient to fulfill this requirement. For example, in United States v. Akiti,
the Eighth Circuit affirmed the jury’s finding that the defendant had advance knowledge
that his co-conspirator in the armed robbery of a credit union would carry a gun despite a
lack of direct evidence. 701 F.3d 883 (8th Cir. 2012). The government had presented
evidence that the defendant “played a major role in planning the robbery”; that he “was
very familiar” with the credit union that was robbed; that the plan involved robbery during
business hours when multiple employees were present (thereby necessitating a firearm);
and that the defendant was with his armed co-conspirator in his own apartment
“immediately before the robbery.” Id. at 887. Based on all of this, the Eighth Circuit agreed
that “a reasonable jury could have concluded [the defendant] knew [the co-conspirator]
30
would be armed during the robbery.” Id.; see also Rosemond, 572 U.S. at 77 (citing Akiti
approvingly).
Similarly, in United States v. Jordan, the Fifth Circuit observed that although
evidence of aiding and abetting an armed bank robbery was circumstantial, the defendant
had been observed “communicating with various co-defendants” on the morning of the
robbery; “moving between the robbery vehicles”; was on a conference call with the
codefendants before and “throughout the commission of the robbery”; and was arrested in
a vehicle following another co-conspirator after the robbery (with multiple weapons
recovered from co-conspirators’ vehicles). 945 F.3d 245, 259–61 (5th Cir. 2019). Based
on this, the Fifth Circuit determined that a reasonable jury “could conclude that [the
defendant] was aware that his co-defendants would be carrying weapons in the commission
of the robbery[.]” Id. at 261; see also United States v. Henry, 722 F. App’x 496, 499–500
(6th Cir. 2018) (same); United States v. Spinney, 65 F.3d 231, 237 (1st Cir. 1995) (same).
The same analysis applies here. As Wallace correctly observes, there is no direct
evidence that he had advance knowledge that a codefendant would carry a gun into the
robbery. Nonetheless, in light of this Court’s deferential review of the jury’s findings, we
conclude a rational trier of fact could have concluded that this element of the crime had
been proven beyond a reasonable doubt because the Government presented substantial
evidence that Wallace organized his codefendants to execute an armed robbery.
Specifically, Wallace was the only defendant who knew and communicated with all three
of the other defendants before and after the murder (and the only link between the victim
in Virginia and Benson and Kindell in Boston). Wallace communicated with Kindell
31
immediately before Kindell and Benson travelled from Boston to Williamsburg. On the
morning of the murder, Wallace called Brown, who possessed one of the guns used in the
murder and owned the truck Wallace admitted “he and others . . . took to . . . [t]he
homicide.” J.A. 622. Further, according to Wallace’s cell phone records and his own
admissions, Wallace then went to Joseph’s home, where Joseph’s car was visibly present,
at precisely the time Joseph’s phone stopped making outgoing transmissions. Finally, after
the murder, Wallace repeatedly called the other Defendants and traveled with Kindell and
Benson to the Greyhound bus station for their accelerated departure.
From this evidence of Wallace’s relationships and extensive communications with
the other codefendants—especially directly before and after the murder—the jury could
have reasonably inferred that Wallace was the chief organizer of an armed robbery. As in
Akiti, the evidence supported a reasonable jury’s conclusion that Wallace was intimately
involved with planning and executing the robbery, travelled with his armed codefendants
to the robbery, and saw a car in Joseph’s driveway (leading to the inference that a firearm
would be necessary to proceed). See 701 F.3d at 887. In turn, that jury could have
concluded that Wallace knew his codefendants would be armed. Thus, to the extent the
evidence presented conflicting inferences, 20 the jury was entitled to resolve them in favor
20
In arguing there was insufficient evidence of his advance knowledge, Wallace
relies on his statements to law enforcement that he stayed in the vehicle and that his
codefendants shot at him. However, given the evidence of his continued contact with the
other Defendants after the robbery, the jury was entitled to conclude these statements were
a false attempt at exculpation.
32
of the prosecution. Moye, 454 F.3d at 394 (observing that “where the evidence supports
differing reasonable interpretations, the jury will decide which interpretation to accept”).
Finally, as Rosemond itself observed, a defendant’s continued participation “after a
gun was displayed or used by a confederate” permits the jury to “infer from his failure to
object or withdraw” that he had the requisite foreknowledge. 572 U.S. at 78 n.9; see also
United States v. Manso-Cepeda, 810 F.3d 846, 850 (1st Cir. 2016) (observing that the jury
could have inferred from the defendant’s failure to withdraw after becoming aware of the
gun that he had advance knowledge of the gun); United States v. Newman, 755 F.3d 543,
546 (7th Cir. 2014) (observing that the defendant’s continued cooperation with a co-
conspirator after he had learned the co-conspirator was using a shotgun led to the
conclusion that the defendant had advance knowledge of firearm possession). Wallace’s
post-crime communication with and transportation of the other codefendants arguably
meets that standard. In sum, we conclude that a reasonable jury could have found sufficient
evidence to support Wallace’s advance knowledge.
B. Constitutionality of Wallace’s Conviction
Finally, Wallace argues his conviction under 18 U.S.C. § 924(c)(1) and (j) should
be reversed and the superseding indictment dismissed in light of United States v. Davis,
139 S. Ct. 2319 (2019). There, the Supreme Court held that the residual clause of the
definition of “crime of violence” found at § 924(c)(3)(B) is unconstitutionally vague.
Wallace submits that because he was convicted under a subsection of § 924(c), he was
convicted under a constitutionally infirm statute.
33
Wallace’s challenge is without merit. Here, the predicate offense for the § 924(c)
“crime of violence” was Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a). In United
States v. Mathis, this Court concluded that Hobbs Act robbery constitutes a crime of
violence under the force clause at § 924(c)(3)(A), not the residual clause at § 924(c)(3)(B).
932 F.3d 242, 266 (4th Cir. 2019). Therefore, any determination by Davis regarding the
residual clause has no bearing on whether Hobbs Act robbery constitutes a valid crime of
violence for the purposes of a § 924(c)(1) conviction.
VI.
For the foregoing reasons, we affirm the Defendants’ convictions for aiding and
abetting the use of a firearm in a crime of violence resulting in murder, in violation of 18
U.S.C. §§ 924(c)(1) and (j) and 2. The judgment of the district court is
AFFIRMED.
34
RICHARDSON, Circuit Judge, concurring in part and concurring in the judgment:
These convictions should be affirmed, and I readily join Judge Agee’s analysis in
Sections I, II.D, II.E, III, IV, and V. But I have two modest reservations. First, although I
agree “it is a close question,” Majority Op. at 18, I believe Detective Kempf’s testimony
incriminates Brown. And as incriminatory testimony, it creates a Bruton issue. Second, I
doubt the district court properly applied Rule 801(d)(2)(A) to admit the portion of
Douglas’s testimony discussing Wallace and to allow Turner’s testimony about Brown and
Wallace. Despite these misgivings, I agree that any errors were harmless. See id. at 19–
20 (finding any Bruton error harmless); id. at 16–17 (determining Douglas’s testimony was
harmless); id. at 21 (considering Turner’s testimony harmless). So I join the Majority
opinion in part and concur in the judgment.
35