United States v. Blackman

• Decision Date: 21 March 2014
• Docket Number: Nos. 13–4406,13–4483.,s. 13–4406
• Citation: 746 F.3d 137
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Khalil Kenyon BLACKMAN, Defendant–Appellant. United States of America, Plaintiff–Appellant, v. Khalil Kenyon Blackman, Defendant–Appellee.

746 F.3d 137

UNITED STATES of America, Plaintiff–Appellee,

v.Khalil Kenyon BLACKMAN, Defendant–Appellant.

United States of America, Plaintiff–Appellant,

v.Khalil Kenyon Blackman, Defendant–Appellee.

Nos. 13–4406, 13–4483.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 30, 2014.

Decided: March 21, 2014.

ARGUED:Marvin David Miller, Law Office of Marvin D. Miller, Alexandria, Virginia, for Appellant/Cross–Appellee. Gurney Wingate Grant, II, Office of the United States Attorney, Richmond, Virginia, for Appellee/Cross–Appellant. ON BRIEF: Dana J. Boente, Acting United States Attorney, Marc J. Birnbaum, Special Assistant United States Attorney, Karen Ledbetter Taylor, Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee/Cross–Appellant.

Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opinion. Judge WILKINSON wrote the opinion, in which Judge NIEMEYER and Judge DUNCAN joined.

WILKINSON, Circuit Judge:

Appellant Khalil Blackman was convicted after a bench trial of two counts stemming from his participation in a series of armed robberies. He now appeals, contending that the evidence was insufficient to support his conviction for brandishing a firearm during and in relation to a crime of violence. The government cross-appeals the district court's denial of its request for forfeiture. For the following reasons, we reject Blackman's arguments and affirm his conviction. We reverse the trial court's forfeiture ruling, however, and remand with directions to enter a forfeiture money judgment pursuant to this decision.

I.

In early 2011, Avery Bines, James Acker, Michael Sylvester, and defendant Khalil Blackman entered into a conspiracy to commit armed robbery. The target of their scheme was Mark IV Transportation & Logistics, a transportation contractor for the electronics and software developer Apple. Bines acted as the principal organizer of the conspiracy, while Blackman served as the “fence” for the operation—i.e., the individual responsible for disposing of the stolen goods. The conspirators planned to rob Mark IV in February of that year, and their discussions contemplated the use of a firearm.

At the agreed time, Bines and Blackman situated themselves in Bines's van across the street from the Mark IV warehouse where the targeted truck was scheduled to be loaded. Acker (armed with a gun) and Sylvester approached the Mark IV driver upon his arrival. They forced the driver into his truck at gunpoint before joining him in the vehicle. Acker then placed the gun to the driver's head and compelled him to drive a short distance to a rendezvous point, where they met up with the others. While Acker bound the victim and Sylvester acted as lookout, Bines and Blackman unloaded the stolen products. Blackman later sold the goods and compensated his co-conspirators accordingly.

Following this first successful effort, the conspirators planned to rob a second Mark IV driver that June. As before, their planning sessions contemplated the use of a firearm. On the day of the robbery, Bines, Acker, and Sylvester tailed their target from a Mark IV facility in Maryland to a mall in Virginia. Outside the mall, Sylvester intentionally rammed his vehicle into the Mark IV truck. Acker then detained the driver at gunpoint and commandeered his vehicle. Sylvester drove the truck to a second location where the conspirators unloaded its contents. Once again, Blackman acted as the fence for the stolen goods.

Later that year, the conspirators decided to conduct a heist on a larger scale than their two previous efforts. In preparation, Acker recruited additional participants while Blackman rented a U–Haul truck to transport the significant quantity of goods they intended to steal. Their target was the tractor trailer that transported Apple products to the Mark IV facility. The conspirators—excluding Blackman but including the additional recruits—gathered on October 30 at the facility to conduct the robbery. They assaulted the Mark IV driver upon his arrival, striking him with a firearm, before unloading the goods and transporting them to the house of one of Sylvester's friends. Blackman later fenced the stolen products.

As a result of his involvement in these events, Blackman was indicted on two counts. Count One charged him with conspiring to commit robbery, in violation of 18 U.S.C. § 1951(a). Count Two alleged a violation of 18 U.S.C. §§ 924(c) and 2, which prohibit using or carrying a firearm during and in relation to a crime of violence. The indictment also included a forfeiture notice. Blackman was the sole individual tried—Acker, Bines, and Sylvester had earlier pleaded guilty and agreed to cooperate with the government.

Following a one-day bench trial, the district court convicted Blackman on both counts. The court sentenced him to 120 months in prison—36 months for Count One and the mandatory minimum of 84 months for Count Two, to run consecutively. It also imposed concurrent sentences of three and five years of supervised release for the two counts, respectively. Lastly, the court ordered $136,601.03 in restitution, jointly and severally with Blackman's coconspirators, based on an appraisal of the value of the stolen goods. It rejected, however, the government's request for forfeiture in the same amount. The court later denied the government's motion to amend the sentence to include a forfeiture order. This appeal and cross-appeal followed.

II.

Blackman's primary claim is that the evidence was insufficient to justify his conviction on Count Two, which charged that:

[Blackman] did knowingly and unlawfully use, carry, and brandish a firearm, during and in relation to a crime of violence ..., namely the conspiracy to interfere with commerce by robbery ... as set forth and charged in Count One of the Indictment, which is re-alleged and incorporated by reference here.

Count Two cited both 18 U.S.C. § 924(c), governing firearm use, and 18 U.S.C. § 2, governing aiding and abetting.

Blackman asserts that the district court's reliance on Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), as a basis of conviction was inappropriate because Pinkerton was not mentioned in the indictment. He claims to have suffered, as a result, unfair surprise at the district court's ruling. Because we find Blackman's conviction appropriate under Pinkerton, we need not address aiding and abetting liability as an alternate basis of conviction.

The Pinkerton doctrine provides that a defendant is “liable for substantive offenses committed by a co-conspirator when their commission is reasonably foreseeable and in furtherance of the conspiracy.” United States v. Dinkins, 691 F.3d 358, 384 (4th Cir.2012) (quoting United States v. Ashley, 606 F.3d 135, 142–43 (4th Cir.2010)) (internal quotation marks omitted). “The idea behind the Pinkerton doctrine is that the conspirators are each other's agents; and a principal is bound by the acts of his agents within the scope of the agency.” United States v. Aramony, 88 F.3d 1369, 1379 (4th Cir.1996) (internal quotation marks omitted). In short, “so long as the partnership in crime continues, the partners act for each other in carrying it forward.” Pinkerton, 328 U.S. at 646, 66 S.Ct. 1180. The law of conspiracy in this respect may seem strict, but it reflects the fact that the combination of criminal capacities often poses a greater risk to society than the actions of a single offender. Moreover, when one reaps the benefits of a collective criminal enterprise, one should be prepared to accept collective consequences.

Contrary to Blackman's argument, this court held in Ashley that the Pinkerton doctrine need not be charged in the indictment, even when it later acts as the legal basis for the defendant's conviction. 606 F.3d at 143. The Ashley court drew an analogy to aiding and abetting liability, which can properly be omitted from an indictment because it “simply describes the way in which a defendant's conduct resulted in the violation of a particular law.” Id. The same is true of Pinkerton, which merely represents an alternative form of vicarious liability. Id.; see also United States v. Min, 704 F.3d 314, 324 n. 9 (4th Cir.2013). At their core, both modes of liability rest on “notions of agency and causation.” Ashley, 606 F.3d at 143.Ashley found unanimous support for its holding in the precedents of our sister circuits. Id. (collecting cases).

In this case, the prosecution's evidence was plainly sufficient to support Blackman's conviction under Pinkerton for brandishing a firearm during and in relation to a crime of violence in violation of § 924(c). Blackman's co-conspirators testified that he was privy to pre-robbery discussions that included explicit references to the use of a firearm, and that a firearm was actually brandished in the course of each robbery. They also testified that Blackman played a crucial role in the success of the operation, acting as the fence for the stolen goods. The fact that Blackman was not present for each robbery is irrelevant: “a defendant need not be involved in every phase of [a] conspiracy to be deemed a participant.” United States v. Leavis, 853 F.2d 215, 218 (4th Cir.1988). Thus, the evidence clearly demonstrated that Blackman not only joined the alleged conspiracy, but that the use of a firearm was both reasonably foreseeable to him and in furtherance of the goals of the conspiracy. See United States v. Jordan, 509 F.3d 191, 202 (4th Cir.2007).

Despite the holding in Ashley, Blackman nevertheless claims that, on the specific facts of this case, he suffered unfair surprise as a result of his conviction under Pinkerton. This argument is meritless. Count Two explicitly incorporated the Count One conspiracy charge as the “crime of violence” predicate for the § 924(c) violation. The indictment thus put Blackman on notice that...