United States v. Ali

• Decision Date: 19 March 2021
• Docket Number: No. 15-4433,15-4433
• Citation: 991 F.3d 561
• Parties: UNITED STATES of America, Plaintiff – Appellee, v. Hassan Sharif ALI, a/k/a Big Hassan, Defendant – Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

991 F.3d 561

UNITED STATES of America, Plaintiff – Appellee,

v.Hassan Sharif ALI, a/k/a Big Hassan, Defendant – Appellant.

No. 15-4433

United States Court of Appeals, Fourth Circuit.

Argued: January 29, 2021

Decided: March 19, 2021

ARGUED: Emily Damsgaard Gladden, TIN FULTON WALKER, & OWEN, PLLC, Raleigh, North Carolina, for Appellant. Stephen T. Inman, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Noell P. Tin, TIN FULTON WALKER & OWEN, PLLC, Charlotte, North Carolina, for Appellant. John P. Cronan, Acting Assistant Attorney General, Matthew S. Miner, Deputy Assistant Attorney General, John P. Taddei, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Ripley Rand, United States Attorney, Matthew G.T. Martin, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Before WILKINSON, NIEMEYER, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Niemeyer and Judge Thacker joined.

WILKINSON, Circuit Judge:

Defendant Hassan Ali led a band of thieves on a spree of armed robberies in July 2013. A jury found him guilty of four counts of aiding and abetting Hobbs Act robbery, 18 U.S.C. §§ 2, 1951(a), four counts of carrying a firearm in connection with a crime of violence, id. § 924(c), and one count of possession of a firearm by a convicted felon, id. §§ 922(g)(1), 924(a)(2). On appeal, Ali brings three claims. He argues that the district court abused its discretion by refusing to sequester the co-defendant witnesses and by denying his motion for a new trial. He also claims that the uncertainty as to the predicate offenses for the § 924(c) convictions renders them invalid. We affirm the judgment of the district court.

I.

A.

In April 2013, Ali had debts that he could not repay. To solve this problem, he texted someone to whom he owed money that he was going to "go rob something." J.A. 532. Ali then planned the robberies with the four co-defendants in this case: Rodney Frazier, John Griffin, Jr., Hassan Hassan, and Kelvin Jacobs, Jr. Although these four men were not all well-acquainted with each other, Ali knew and brought all of them together for the robberies.

Ali first gathered with Hassan, Jacobs, and a few other men a couple of days before July 7 to plan the robbery of a Food Lion grocery store on Golden Gate Drive in Greensboro, North Carolina. Ali assigned roles to each co-conspirator and told them where to be for the robbery. On July 7, Jacobs made a diversionary call, Hassan served as lookout, and Griffin went into the store shortly before 11 p.m. After entering the store, Griffin threatened the clerk with his gun, forced her to open the safe, took the approximately $800 within it, and fled the store. Later, Ali divided up the money.

On July 15, the crew robbed the Food Lion on Drawbridge Parkway. It followed the same pattern as the first robbery except with Frazier accompanying Griffin into the store to get the money. They grossed approximately $1,000 from the theft, and Ali again distributed the money afterward.

This pattern continued at the robbery of Jenny's Beauty, a Greensboro beauty salon, on July 20. The fourth and final robbery was of a Brink's armored truck in the parking lot of a SunTrust Bank branch on Eastchester Drive in High Point, North Carolina. In preparation for the robbery, Frazier stole a van, so they would not need to use their own cars. On July 25, Griffin drove the stolen van to the bank with Frazier and Ali. Jacobs again called 911 to send the police to a different location. Hassan monitored a police scanner in a separate car. Griffin and Ali, wielding firearms, jumped out of the van when the Brink's truck arrived. Griffin put a handgun to the guard and grabbed a bag of money. On the other side of the truck, Ali grabbed another bag and approached the second Brink's employee, Paytric Bratcher, with a shotgun. Bratcher drew his handgun and fired five times at Ali. Ali dropped his shotgun and the money bag and ran. Ali and Griffin met Frazier in the getaway car and left the scene. Later, Ali divided the $68,000 in cash they stole.

The five men were indicted on September 30, 2014. Before trial, all four of Ali's co-defendants accepted plea agreements offered by the government. In exchange for their testimony at Ali's trial, the government dropped some of the charges against them—three of the eight against Griffin, three of the six against Jacobs, one of the four against Frazier, and four of the eight against Hassan.

B.

Ali's trial began on January 5, 2015. On the first day of trial, the government put on law enforcement witnesses, the Brink's employees, and other non-co-defendant witnesses. The next morning, Griffin was the second person to testify. He discussed the planning and execution of all four robberies and detailed the roles Ali and each co-defendant played in the series of crimes.

After Griffin finished and returned to the holding cell, the defense counsel requested a conference at the bench. Defense counsel was concerned that Griffin would go back to his cell and talk about his testimony with the other co-defendants. The court recognized that "[t]hey ought to be sequestered" and said that it would take care of it at the break, to which there was no objection. J.A. 328. Then, the government called its next witness.

The court recessed after that witness, excused the jury, and discussed the co-defendants' custodial arrangements with counsel. The marshal explained that Frazier and Jacobs were in one cell, Griffin and Hassan were in an adjacent cell, and Ali was in a third cell. J.A. 333–34. Defense counsel expressed concern that—given the co-defendants' proximity—they would discuss their testimony and "know which questions [we]re being asked." J.A. 334. Since the co-defendants were scheduled to take the stand intermixed with other witnesses throughout the trial, the court found that it could not ensure that they would not be in the holding cells together. Given the limited holding space in the building, the court concluded that there was no arrangement that would keep all co-defendants out of talking distance with each other.

After summoning Griffin's attorney to the conference, the court inquired whether Griffin would be needed at any point that afternoon or if he could instead be returned to the Greensboro Jail. Griffin's attorney and the government's attorney acquiesced in sending him away, but Ali's attorney said he was unsure whether he would need to call him later that day. The court concluded that Griffin would need to be kept in the courthouse for the remainder of the day.

The judge then informed counsel that she would "instruct the rest of the witnesses not to discuss their testimony with other witnesses after they g[o]t off the witness stand." J.A. 336. She asked Griffin's attorney to tell his client the same. She also requested that the attorney help her remember to give that instruction to the other co-defendants after they testified. Defense counsel did not object to this course of action.

Subsequently, the jury returned from recess, and the government called five more witnesses. When the court dismissed the jury for lunch, it told the marshal that Griffin would not be needed for the day and thus could be returned to jail. Neither counsel commented on this instruction. After lunch, the government called Jacobs to the stand. He testified as to the organization, planning, and execution of the two Food Lion robberies and the Brink's armored car robbery. He neither participated in nor knew about the beauty salon robbery. On cross-examination, Jacobs testified that he had not talked to Frazier about the case while they were being held in the courthouse that day. He also said that he had never talked to either Frazier or Griffin about the case. After the government finished re-direct, the court released Jacobs for the day but failed to instruct him not to discuss his testimony with the other co-defendants. The government called nine other witnesses before the court adjourned for the day. The court confirmed with counsel that Jacobs and Griffin would not be needed at the courthouse for the third day of trial.

The next day, Frazier was the fourth witness to testify. Frazier discussed the planning and execution of the Drawbridge Food Lion robbery and the Brink's robbery. He explained what each man did during the robberies, what weapons were used, and how the money was divided up afterward. On cross-examination, Frazier said that he was in a holding cell with Jacobs, Griffin, and Hassan but they did not discuss the case or their testimony. J.A. 601. When Frazier finished testifying, the court did not instruct him not to discuss his testimony or the questions he was asked with his co-defendants.

Following Frazier, one police officer testified briefly and then the government called Hassan to the stand. Hassan testified as to the planning and execution of all four robberies. On cross-examination, defense counsel asked Hassan about his custodial arrangements while he was waiting to testify. Hassan said he had shared a cell with Griffin the day before, and Griffin told him who was present in the courtroom but said nothing about the case. J.A. 639–40.

The government's final witness was an FBI expert in cell site location analysis. He plotted the data for the phone numbers associated with Ali and his four co-defendants on maps. These maps showed the men together at the planning house before the robberies, at the robbery sites when those robberies took place, and reunited after the robberies.

Consulting with counsel, the court finalized the jury instructions and verdict form. All agreed on a general verdict form that included only "guilty" and "not guilty" for each count without use of a special interrogatory for the jury to mark the theory of guilt. The court explained to the jury that the defendant could be found guilty of Hobbs Act...