United States v. Gooch

Decision Date02 March 2017
Docket NumberNo. 15-4360,15-4360
Citation850 F.3d 285
Parties UNITED STATES of America, Plaintiff-Appellee, v. Eric GOOCH, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Kenneth P. Tableman, KENNETH P. TABLEMAN, P.C., Grand Rapids, Michigan, for Appellant. Daniel R. Ranke, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Kenneth P. Tableman, KENNETH P. TABLEMAN, P.C., Grand Rapids, Michigan, for Appellant. Daniel R. Ranke, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

Before: GUY, CLAY, and GRIFFIN, Circuit Judges.

OPINION

RALPH B. GUY, JR., Circuit Judge.

Defendant Eric Gooch appeals his jury convictions and sentences for conspiracy to obstruct commerce by means of robbery, obstructing commerce by means of robbery, armed bank robbery, and carrying a firearm during the commission of a crime of violence. We affirm.

I.

Defendant helped plan armed robberies of a discount store and two banks. During the discount store robbery, defendant accompanied two others to the business in a getaway car. Defendant planned to enter, but changed his mind. Defendant witnessed Shawn Caldwell give a firearm to codefendant Larnell Tripp, who robbed the cashier and the business's safe at gunpoint. A month later, defendant, Caldwell, and Greg Williams robbed a bank. Caldwell remained in the car while defendant and Williams brandished firearms and robbed the bank's vault. Three weeks later, defendant accompanied Caldwell and Williams to another bank, but remained outside the bank entrance. Williams robbed the bank at gunpoint, placing the firearm against the bank manager's head and pistol-whipping a security guard. Defendant neither admitted nor denied knowing prior to the robbery that Williams would use a firearm.

The prosecution charged defendant in a seven-count indictment consisting of two counts of conspiracy to obstruct commerce by means of robbery, a.k.a. "Hobbs Act robbery" (18 U.S.C. §§ 1951(a), 1951(b)(1), and 2); three counts of using, carrying and brandishing a firearm during and in relation to a crime of violence (18 U.S.C. §§ 924(c)(1)(A) and 2); and two counts of armed bank robbery (18 U.S.C. §§ 2113(a), 2113(d), and 2).1 Although the district court initially adjudged defendant incompetent to stand trial, he later passed multiple competency evaluations.

Defendant filed and subsequently withdrew notice of his intent to present evidence that he was not guilty by reason of insanity. Defendant also sought to represent himself. The district court engaged defendant in an extended self-representation colloquy and allowed him to self-represent with appointed counsel as standby. Defendant cross-examined some witnesses but did not present an affirmative defense. He instead moved for a judgment of acquittal based on insufficient evidence, which the district court denied. The jury found defendant guilty, and the district court sentenced him to 664 months' incarceration.

On appeal, defendant challenges the sufficiency of the evidence that he aided and abetted the discount store robbery and second bank robbery, alleges the district court erred in allowing him to self-represent and in sentencing him to consecutive sentences on his § 924(c) convictions, and argues that Hobbs Act robbery is not a crime of violence.

II.
a. Sufficiency of the Evidence

We review the sufficiency of the evidence for a conviction "in the light most favorable to the prosecution" to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Circumstantial evidence alone may sustain a conviction. United States v. Tarwater , 308 F.3d 494, 504 (6th Cir. 2002).

Aiding and abetting in the carrying of a firearm during commission of a crime of violence requires that the defendant "associate himself with the venture, that he participates in it as something he wishes to bring about, and that he seek by his action to make it succeed." United States v. Lowery , 60 F.3d 1199, 1202 (6th Cir. 1995) (quoting United States v. Lawson , 872 F.2d 179, 181 (6th Cir. 1989) ). The prosecution must show that defendant had advance knowledge that a firearm would be used in the course of the crime. Rosemond v. United States , ––– U.S. ––––, 134 S.Ct. 1240, 1249, 188 L.Ed.2d 248 (2014). The intent requirement of aiding and abetting "preserves the distinction between assisting the predicate ... crime and assisting the broader § 924(c) offense." Id . at 1248.

i. Discount Store Robbery

Defendant argues that he was merely present during Tripp's armed robbery of the discount store and therefore not guilty as an aider and abettor. See United States v. Winston , 687 F.2d 832, 835 (6th Cir. 1982). The record undermines his claim. Defendant admitted, and his codefendants corroborated, that he helped plan the robbery and witnessed Caldwell give Tripp a firearm. Active participation in the planning phase of an armed robbery constitutes intent to bring about the offense. See Phifer v. United States , 221 F.3d 1335, 2000 WL 924451, at *2 (6th Cir. 2000) (unpublished table decision) (affirming conviction for aiding and abetting armed robbery where defendant knew of principal's intent to rob victim at gunpoint). The prosecution thus put forth sufficient evidence that defendant aided and abetted the armed robbery of the discount store.

ii. Second Bank Robbery

No testimony or other record evidence established—or rebutted—that defendant knew Williams possessed a firearm during the second bank robbery. The prosecution relies on defendant's participation in the previous two armed robberies and knowledge that firearms figured in both crimes to argue that defendant had advance knowledge Williams would use a firearm in the last bank robbery.

We have reversed § 924(c) convictions where jury instructions were insufficiently clear as to the defendant's intent to aid an armed offense. United States v. Henry , 797 F.3d 371, 374-77 (6th Cir. 2015) (applying plain error review to unpreserved jury instruction issue). Henry established that the intent instruction must go to the entire crime—the predicate offense and the violence component under § 924(c) —such that the jury convicts the defendant of armed bank robbery. Id . at 374.

Here, the jury instructions amply apprised the jurors that they must find defendant "knew in advance that his confederate would brandish, carry, or use a firearm during the robbery." We presume that jurors follow the district court's instructions. United States v. Lester , 238 Fed.Appx. 80, 83 (6th Cir. 2007) (collecting cases). Defendant's participation in the two prior armed robberies with most of the same codefendants is strong circumstantial evidence that he was aware of the group's modus operandi of using firearms in the commission of robberies. Viewing the evidence in a light most favorable to the prosecution, a rational trier of fact could find that defendant had advance knowledge Williams would use a firearm during the final bank robbery. Sufficient evidence therefore supported defendant's aiding-and-abetting convictions.

b. Right to Counsel

Where a defendant asserts a violation of the right to counsel, we review the district court's factual findings for clear error and its legal conclusions de novo . United States v. Cromer , 389 F.3d 662, 679 (6th Cir. 2004). We have recognized that a district court's decision that a mentally compromised defendant may self-represent "merits deference." United States v. Stafford , 782 F.3d 786, 791 (6th Cir. 2015).

Defendant claims the district court deprived him of his right to counsel by allowing him to self-represent when he was incapable of giving a knowing and intelligent waiver. See Faretta v. California , 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In this circuit, district courts must conduct a colloquy akin to that in section 1.02 of the Bench Book for United States District Judges . See United States v. McBride , 362 F.3d 360, 366 (6th Cir. 2004) ; see also United States v. McDowell , 814 F.2d 245, 249-50 (6th Cir. 1987).

The district court's discussion with defendant coincided nearly verbatim with the colloquy provided in the Bench Book . The district court also thoroughly admonished defendant that a trained lawyer could better represent him and that it was unwise to self-represent. Defendant nevertheless chose to represent himself with counsel as standby. Whether he chose wisely is not the issue on appeal. See Godinez v. Moran , 509 U.S. 389, 400, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993) ; see also United States v. Dubrule , 822 F.3d 866, 880 (6th Cir. 2016) ("[G]iven the frequency with which pro se defendants ... espouse strange [legal] theories, we decline to hold that the district court abused its discretion by failing to order a competency hearing on the basis of strange statements contained in a few ... pre-trial motions.").

Defendant asserts he was mentally incompetent to waive his right to representation. Because he has not appealed the district court's competency ruling, it is not before us. Nevertheless, the record shows that the district court gave, and defendant seized, abundant opportunities to raise the issue of his competency. Although an initial evaluation found defendant incompetent to stand trial, each of the multiple subsequent evaluations and hearings found that he was competent despite certain "malingering" behaviors. With the assistance of standby counsel, defendant moved for a competency evaluation soon after asserting his right to self-represent. The district court again found him competent.

The competency standard for standing trial is identical to the standard for self-representation. Godinez , 509 U.S. at 396-97, 113 S.Ct. 2680. It is immaterial that the district court did not review defendant's competency with a specific eye toward self-representation: it adjudged him mentally...

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