U.S. v. Williams

• Citation: 547 F.3d 1187
• Decision Date: 06 November 2008
• Docket Number: No. 06-50599.,No. 06-50608.,No. 06-50612.,06-50599.,06-50608.,06-50612.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Dwight WILLIAMS, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. William A. Steel, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Talford Brown, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

547 F.3d 1187

UNITED STATES of America, Plaintiff-Appellee, v. David Dwight WILLIAMS, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. William A. Steel, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Talford Brown, Defendant-Appellant.

No. 06-50599.

No. 06-50608.

No. 06-50612.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 8, 2008.

Filed November 6, 2008.

Benjamin L. Coleman, Coleman & Balogh LLP, San Diego, CA, for appellant David Williams.

Michael Edmund Burke, San Diego, CA, for appellant William Steel.

Brian J. White, San Diego, CA, for appellant Talford Brown.

Stephen Frederick Miller, Assistant United States Attorney, San Diego, CA, for appellee United States.

Appeal from the United States District Court for the Southern District of California; Irma E. Gonzalez, District Judge, Presiding. D.C. No. CR-02-03171-IEG.

Before: WILLIAM C. CANBY, JR., ANDREW J. KLEINFELD, and JAY S. BYBEE, Circuit Judges.

BYBEE, Circuit Judge:

David Williams, William Steel, and Talford Brown appeal their convictions following a jury trial for conspiracy to interfere with interstate commerce by robbery, conspiracy to possess cocaine with the intent to distribute, and possession of a firearm during a drug crime and crime of violence. Williams, Steel, and Brown argue, inter alia, that there was insufficient evidence to support their convictions, that their indictment should have been dismissed because of outrageous government conduct, and that the district court should have declared a mistrial because a juror revealed that she was the lone holdout. We hold that there was sufficient evidence to support the convictions and that the government did not deny the defendants their due process rights by engaging in outrageous conduct. Because the district court gave an Allen charge after a juror disclosed that she was a holdout, we reverse and remand for a new trial.

I

David Williams, Talford Brown, William Steel, and Evan Hollingsworth¹ were indicted in the Southern District of California for one count of conspiracy to interfere with commerce by robbery, see 18 U.S.C. § 1951(a); one count of conspiracy to possess cocaine with the intent to distribute, see 21 U.S.C. §§ 841(a)(1), 846; and one count of carrying a firearm during a drug crime and crime of violence, see 18 U.S.C. § 924(c)(1)(A), (c)(2).

The following account is taken from the evidence introduced at trial. Around August 2002, a man identified only as "Marty" introduced Williams as a drug dealer to a paid government informant named Tony.² During that month, Tony and Williams planned a marijuana sale in New Orleans. Tony was to provide the marijuana, and Williams was to put Tony in contact with a buyer. The deal did not go through, but Williams and Tony continued to negotiate planned drug transactions, including one involving cocaine from Belize and one involving a ten to fifty kilogram cocaine purchase by Williams. At some point during their association, Williams confessed to Tony that he had pleaded no contest to and was wanted for a bank robbery in Texas.

A few days before October 25, 2002, Williams told Tony about a bank robbery he had planned, and that he needed to sell a firearm to raise money to rent the getaway car. Williams already had planned the bank robbery in some detail, having identified the target bank and recruited someone on the inside of the bank to help. Williams tried to enlist Tony to be the getaway driver. Tony relayed this information to Floyd Mohler, an agent with the Bureau of Alcohol, Tobacco and Firearms ("ATF"), who proposed that Tony pitch the idea of robbing a fictitious drug stash house in lieu of robbing the bank.

On October 25, 2002, Tony met Williams and Andy Jauch, an undercover Drug Enforcement Administration ("DEA") agent, at a restaurant and recorded the conversation. During that meeting, Williams sold a handgun to Tony. Tony told Williams that the gun was for a man named Enrique, who was involved in a drug smuggling operation in San Diego and who was interested in robbing a drug stash house. Williams informed Tony and Jauch about some Jamaicans in New York City who wanted to buy a significant quantity (between one thousand and two thousand pounds) of marijuana. Williams also supplied many details about his planned bank robbery.

On October 29, 2002, Williams and Tony met with a man named Wayne, who was affiliated with the Jamaicans in New York seeking to buy the marijuana. Williams flew to New York to meet Wayne on November 1, 2002, and had several recorded telephone conversations with Tony and Wayne. These conversations concerned only the New York City marijuana transaction. Tony met with the Jamaicans later in November 2002; the Jamaicans were arrested when they arrived with the money to buy the marijuana.

On November 4, Tony introduced Williams to ATF agent Harry Penate, who was playing the undercover role of Enrique Romano. Penate told Williams that he had a job for Williams, but that Williams could decline it if he wanted. Penate told Williams that he operated drug stash houses for a drug smuggling organization, but some of the drug loads recently had been lost. To compensate for the lost loads, the drug organization was not paying Penate. Penate said that in a few days, the stash house would contain one hundred kilograms of cocaine and between fifty and sixty thousand dollars in currency, guarded only by the two women who count the money and a single guard with a sawed off shotgun. Penate told Williams that he wanted to hire someone with a crew to rob the money and the cocaine. He told Williams that if this robbery went well, there were two other stash houses that could be robbed.

As the conversation progressed, Penate and Williams discussed more details about how to conduct the robbery, including how to remove the drugs, how many people were in each house and how many were armed, and whether they would need to kill anyone. Williams indicated that he had two people with whom he could do the job, that he had worked with them before, and that he and his crew were ready to do the job immediately. They discussed how they would split the money and the drugs and how Williams would pay his crew. Williams indicated that one of the people he planned to use had recently been involved in a home invasion robbery like the one Penate had proposed, but had been caught.

On November 5, Williams and Tyrone Sprewell met with Penate and sold him another gun. Sprewell was introduced to Penate as someone who would be helping with the robbery, who had done similar things in the past, and who had done jobs with Williams before. Sprewell was later arrested on an outstanding warrant when he was pulled over during a traffic stop.

On November 8, Williams met Penate at a restaurant and discussed the plan details. He indicated that he intended to kill the armed guard at the stash house. He told Penate that Sprewell did not want to participate in the robbery, but that he had two other guys for the job. Williams said of his crew that "[t]hey know everything," including how the money and drugs would be divided. He said they had done jobs like this before and that they were pros.

On November 13, Williams met Penate at another restaurant near a motel in San Diego ("San Diego motel") and discussed the final details of the stash house robbery planned for the next day. Williams told Penate that the other members of the crew were following him and that they had brought some things so they could "handle" themselves. Penate told Williams that he had rented a room at another motel ("Chula Vista motel") five blocks from the stash house in Chula Vista, which they would use to stage the robbery. He also told Williams that there would be over one hundred kilograms of cocaine and about $100,000 in cash in the house at the time of the robbery. Penate rented a minivan for Williams to drive. Williams said that he had three people involved, two who knew the plan and one who was just driving the guns and police radio down.³ After this meeting, they retired to the room Penate had rented at the San Diego motel, which had been wired for audio and video recording.

On the morning of November 14, 2002, Penate met Williams at a room in the San Diego motel. Williams had been joined by Hollingsworth, Steel, and Brown. Prior to Penate's arrival, Williams called Penate and asked him to bring some breakfast items, as well as potatoes to be used as silencers, which Penate did.

Penate described to the four men the details of the plan at this meeting, including how they would enter the house. He told them if they did not want to participate, they should say so and "be on your way." Brown audibly indicated his willingness to participate, and Penate testified that Williams, Steel, and Hollingsworth nodded their assent.⁴ Williams, Steel, Brown, and Hollingsworth then wiped the room free of fingerprints. While they prepared to leave, Williams asked Brown, "How many you got?" Brown replied, in an apparent reference to the number of bullets in his gun, "I will got nine, but I only need one."

Penate, the three appellants, and Hollingsworth then left the San Diego motel to drive to the second motel in Chula Vista. Penate drove a blue Ford Explorer; Williams followed in the rented minivan, then Hollingsworth in a Jaguar sedan. Steel completed the caravan with Brown as a passenger in a Dodge Intrepid. All four vehicles pulled into the Chula Vista hotel; only Williams followed Penate into the rear parking area where the SWAT team deployed a flash-bang grenade before arresting Williams. Steel and Brown, in the Dodge Intrepid, left the Chula Vista hotel shortly after arriving. The Chula Vista police stopped them as they drove away. The officers ordered Steel and Brown out of the car and arrested them; a search of Brown upon his arrest revealed a gun holster on his waist.

A search of the Intrepid recovered a...