Farmer v. United States, 15-1483

• Decision Date: 15 August 2017
• Docket Number: No. 15-1483,15-1483
• Parties: Franchie FARMER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

867 F.3d 837

Franchie FARMER, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 15-1483

United States Court of Appeals, Seventh Circuit.

Argued September 19, 2016
Decided August 15, 2017
Rehearing and Rehearing En Banc Denied October 16, 2017^*

Emily L. Chapuis, Matthew S. Hellman, Attorneys, Jenner & Block LLP, Washington, DC, Barry Levenstam, Attorney, Jenner & Block LLP, Chicago, IL, for Petitioner–Appellant.

Thomas E. Leggans, Attorney, Office of the United States Attorney, Benton, IL, for Respondent–Appellee.

Before Posner, Williams, and Sykes, Circuit Judges.

Sykes, Circuit Judge.

In 2012 a jury convicted Franchie Farmer of armed bank robbery, see 18 U.S.C. § 2113(a) and (d), and brandishing a firearm during a crime of violence, see id.

867 F.3d 839

§ 924(c)(1)(A)(ii). Farmer drove the getaway car and was not in the bank during the robbery. Her convictions were thus premised on an accomplice theory of liability as an aider or abettor under 18 U.S.C. § 2.

In 2014 the Supreme Court held that a § 924(c) conviction under an accomplice theory requires proof that the accomplice had "foreknowledge that his confederate [would] commit the offense with a firearm." Rosemond v. United States , ––– U.S. ––––, 134 S.Ct. 1240, 1249, 188 L.Ed.2d 248 (2014) (quotation marks omitted). The jury at Farmer's trial was not instructed on a foreknowledge requirement for the § 924(c) charge. Understandably so; her trial predated Rosemond by two years. Nor did her counsel challenge the § 924(c) instruction, either at trial or in her direct appeal. See United States v. Farmer , 717 F.3d 559 (7th Cir. 2013) (affirming the district court on all counts).

Farmer did challenge the instruction, albeit obliquely, in a motion under 28 U.S.C. § 2255 after Rosemond was decided. She argued that her trial counsel was constitutionally ineffective for failing to object to the § 924(c) instruction. The district judge denied relief because Farmer failed to establish that she was prejudiced by her counsel's failure to object.

Farmer's argument has shifted somewhat on appeal. She now raises the Rosemond issue directly rather than through the prism of trial counsel's ineffectiveness. Farmer procedurally defaulted this claim and must establish cause and actual prejudice to excuse the default. She hasn't done so. The government presented plenty of evidence that Farmer had advance knowledge that a gun would be used in the robbery, so the Rosemond error was not grave enough to cause actual prejudice. We affirm.

I. Background

In 2008 two people robbed a bank at gunpoint in the small town of Tamms in southern Illinois, taking more than $14,000. During the robbery, a bank customer managed to escape the premises and hide a short distance away. The customer saw the two robbers leave the bank and flee in the back of a dark SUV. The witness told police that the two front seats of the SUV were already occupied when the robbers jumped in, but he didn't get a good look at either person. In their haste to leave the bank after the robbery, one of the robbers dropped the demand note. It read: "This is a robbery, I have a gun, don't cause a scene and no one will get hurt, I do have a gun!!!"

It did not take long for police to catch the two bank robbers. After seeing surveillance footage on the local news, an ex-girlfriend identified Richard Anderson as one of the robbers; his fingerprints on the demand note confirmed his involvement. A couple of weeks later, a lead from a pawnshop robbery across the river in Missouri pointed to Holli Wrice as the other robber. Police also identified the getaway car as a black 2002 Toyota Sequoia. An officer spotted the car in Tamms and learned that it was registered to Franchie Farmer, who admitted that she had loaned the Sequoia and her cell phone to Wrice on the day of the robbery but claimed that she didn't know anything about Wrice's activities that day.

Farmer told the police that at the time of the robbery, she had been working at her job as an in-home caretaker for a mentally disabled woman. As police looked into Farmer's story, however, additional questions arose. Cell-phone records indicated that a number of calls were placed between Farmer's cell phone and Wrice's cell phone just before, during, and after the bank robbery. During the same period,

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a number of calls were placed from Farmer's cell phone to her family members—people whom Wrice had no reason to call.

Farmer's account was also directly contradicted by Wrice and Anderson, who agreed to cooperate with the government in its case against Farmer after being charged and negotiating plea deals. A grand jury indicted Farmer on one count of armed bank robbery in violation of § 2113(a) and (d) and one count of brandishing a firearm during a crime of violence in violation of § 924(c)(1)(A)(ii). The charges were premised on an accomplice theory of liability. See 18 U.S.C. § 2.

Wrice and Anderson testified at trial that Farmer was the getaway driver for the robbery and that she brought along the mentally disabled woman who was in her charge—presumably the front-seat passenger espied by the bank customer. According to their testimony, Farmer met them behind a mall on the day of the robbery and they drove in separate cars to a rural plot of land Farmer owned outside of Tamms. When they arrived, Farmer wrote the demand note. Anderson and Wrice then got into the Sequoia, and they drove together to the bank. After the robbery Farmer drove everyone back to the rural property where they split up and went their separate ways.

Wrice testified that Farmer had been involved in planning the robbery for several months and that the two had discussed using guns on many occasions. Anderson was unsure whether Farmer knew that he and Wrice were going to brandish guns in the bank, but Wrice testified that Anderson was a late addition to the team and hadn't been present at the earlier planning sessions. And of course, as we've noted, both Wrice and Anderson testified that Farmer wrote the demand note, which twice mentioned the presence of a gun. Wrice described the discussion that she and Farmer had while Farmer prepared the note:

Should we just display a gun, or should we

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