In United States v. Cannon, No. 16-16194 (Feb. 3, 2021) (William Pryor, Hull, Marcus), the Court affirmed defendants' convictions for conspiracy to commit Hobbs Act robbery, conspiracy to possess with intent to distribute cocaine, using and carrying a firearm during a crime of violence and a drug trafficking crime, and possession of a firearm by convicted felons. All charges stemmed from a reverse stash house sting.
First, as to defendants' selective prosecution claim, the Court reiterated the "demanding" burden defendants must carry when seeking to establish a claim of selective prosecution in violation of the Constitution, and held that statistical data reflecting the treatment of only one particular group fails to meet that burden because it fails to show that similarly situated persons were treated differently. That is, telling the court how many minorities have been prosecuted does nothing to prove how many non-minorities have not been. The Court also reiterated that defendants' preserved only a selective prosecution claim, and not a selective enforcement claim.
Second, the Court rejected defendants' argument, raised for the first time on appeal, that the indictment was multiplicitous because it improperly charged two conspiracies when only a single conspiracy occurred. The Court so held because the conspiracies have separate elements, and each requires proof of a fact which the other does not.
Third, the Court rejected the defendants' argument that the creation of the stash house robbery scheme by the government constituted outrageous government conduct in violation of the Fifth Amendment. The Court first questioned whether such a defense has ever even been recognized by the Court or the Supreme Court. The Court then held that the government's conduct was not outrageous; merely presenting defendants with a non-unique opportunity to commit a crime, of which they are more than willing to take advantage, does not amount to outrageous government conduct. The Court so held even though the government's CI suggested the robbery, and an undercover detective invented the idea of a stash house filled with cocaine and armed guards and offered defendants a van to use.
Fourth, the Court affirmed the district court's decision not to give an entrapment instruction, finding that defendants failed to present sufficient evidence to create a jury issue on inducement.
Fifth, the Court rejected defendants' sentencing entrapment argument, which was raised for the first time on appeal. The Court held that the Supreme Court's decision in Apprendi has no application to a sentencing entrapment defense.
Sixth, the Court held that the district court did not abuse its discretion in dismissing a juror who knew the defendant's wife and styled her hair on a regular basis. It was well within the district court's discretion to conclude that the juror's relationship to the defendant's wife was financial in nature and too close, and that this created a greater likelihood of her being influenced by her relationship to the defendant's wife. And, in any case, defendants failed to show that the replacement of the juror resulted in prejudice requiring reversal.
Seventh, the Court rejected defendant's argument that his right to have all proceedings in open court transcribed was violated because the court reporter failed to transcribe the recorded conversations that were admitted into evidence. Both the recordings and corresponding written transcripts were admitted into evidence at trial, so, under these circumstances, nothing in the Court Reporter Act requires that the audio or video recordings also be transcribed by the court reporter.
Finally, the Court considered defendants' argument that the section 924(c) count must be dismissed because one of the two predicates--conspiracy to commit Hobbs Act robbery--is an invalid predicate and the jury entered a general verdict. The Court first agreed that it was error for the district court to deny defendants' motion to dismiss the predicate of Hobbs Act conspiracy and to submit that crime as a valid predicate in Count 3 for the jury's consideration. In so finding, the Court cited to Stromberg v. California for the proposition that it is error to instruct a jury that it can convict on alternative theories of guilt, one of which is invalid. Nonetheless, the Court found that the government had carried its burden in demonstrating that any error was harmless because the trial record makes clear that the two predicate conspiracy crimes were so inextricably intertwined that no rational juror could have found that defendants carried a firearm in relation to one predicate but not the other. The Court emphasized the importance of the factual record when evaluating section 924(c) crimes after Davis through its discussion of its prior published opinions in In re Navarro, In re Cannon, and In re Gomez.
