In United States v. Pendergrass, No. 19-13681 (Mar. 24, 2021) (Rosenbaum, Luck, Anderson), the Court affirmed the defendant's convictions for Hobbs Act robbery and for carrying a firearm in furtherance of those robberies.
This case stems from a string of five robberies, all of which involved certain commonalities: a black-and-silver pistol held by a left-handed man; that same man dressed in a red hooded shirt under a long-sleeved black shirt with a distinctive white pattern on it; a single strap cross-body backpack; a phone number ending in 1011 that pinged off of cell towers that covered the areas of the robberies; bullets recovered from the scenes of the robberies that had cycled through the same firearm.
Prior to trial, defendant moved to suppress evidence from a phone recovered from his car searched for "handguns, long guns, drugs, bullets, blood and/or DNA" in an unrelated incident. On the phone, officers found pictures and videos incriminating the defendant in the robberies. The district court granted the motion to suppress the phone and its contents. The district court, however, denied defendant's motion to exclude Google geo-location data showing his whereabouts during the robberies. The district court also denied defendant's motion to continue the trial on account of his newly appointed attorney, as well as his motion to dismiss a juror for cause because she was a probation officer.
Defendant raised six challenges to his convictions. First, he argued that he was prejudiced by the district court's denial of his motion to continue trial. The Court held that the district court did not abuse its discretion in denying defendant a continuance because defendant had two years to prepare for his trial, did not point to any evidence that would have been presented had the continuance been granted, his new counsel was prepared, and the evidence presented at trial was not voluminous or complicated.
Second, defendant challenged the district court's failure to dismiss for cause the juror who was a probation officer. The Court held that the district court did not abuse its discretion in declining to dismiss the juror because those who engage in community supervision are not covered by 28 U.S.C. 1863, which provides that members of the fire and police departments are barred from jury service. The Court's holding was in line with the Tenth Circuit.
Third, the Court held that any error in admitting the Google geo-location data was harmless beyond a reasonable doubt because the evidence introduced against the defendant was "crushing." The Court so held without deciding whether the Google geo-location data should have been excluded as fruit of the poisonous tree.
Fourth, the Court held that evidence sufficiently supported defendant's convictions on all five robberies because, when viewed all together, the evidence established a modus operandi and a pattern. In so holding, the Court included a chart of the robberies and their shared similarities. The Court also noted that when modus operandi evidence supports an inference that the same person committed multiple crimes, a jury can consider identity evidence from other robberies.
Fifth, the Court, reviewing challenges to the case agent's testimony for plain error, found no error.
Sixth, the Court held that even assuming error, cumulative error did not warrant vacatur of the convictions. Defendant failed to show that his substantial rights were affected by the aggregation of the alleged errors.
