United States v. Burden

• Citation: 964 F.3d 339
• Decision Date: 02 July 2020
• Docket Number: No. 19-30394,19-30394
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kadeem BURDEN; Timmy Scott, also known as Timothy Scott, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

964 F.3d 339

UNITED STATES of America, Plaintiff-Appellee,

v.Kadeem BURDEN; Timmy Scott, also known as Timothy Scott, Defendants-Appellants.

No. 19-30394

United States Court of Appeals, Fifth Circuit.

FILED July 2, 2020

Mary Patricia Jones, Frederick A. Menner, Jr., Lyman Edgar Thornton, III, Esq., Assistant U.S. Attorneys, U.S. Attorney's Office, Middle District of Louisiana, Baton Rouge, LA, for Plaintiff-Appellee.

Rebecca Louise Hudsmith, Esq., Federal Public Defender, Federal Public Defender's Office, Middle & Western Districts of Louisiana, Lafayette, LA, Roberta Mae Fontenot, Esq., Assistant Federal Public Defender, Federal Public Defender's Office, Middle & Western Districts of Louisiana, Baton Rouge, LA, for Defendant-Appellant.

Ian F. Hipwell, Esq., Attorney, Andre' Robert Belanger, Esq., Manasseh, Gill, Knipe & Belanger, P.L.C., Baton Rouge, LA, for Defendant-Appellant.

Before SMITH, HIGGINSON, and ENGELHARDT, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Kadeem Burden and Timmy Scott appeal their convictions and sentences for unlawfully possessing firearms as felons. We affirm.

I.

Police officer Jesse Barcelona was driving his patrol car when he approached an intersection. Facing in the perpendicular direction were an SUV and a Mercedes. As Barcelona passed through the intersection, two or three black males in white t-shirts and blue jean shorts exited the SUV, approached the Mercedes, and began repeatedly discharging firearms into it. When Barcelona turned his car around to return to the scene, the SUV sped away, leaving the shooters running after it with Barcelona in pursuit (the occupants of the Mercedes, providentially it would seem, were uninjured).

The shooters turned to look at Barcelona's approaching car. Barcelona "could tell that one [of them] was still armed with what appeared to be an AK-47 rifle." Further, "they appeared to have something [black] covering their face[s]." They then ran into the local residential block, around which Barcelona (and other officers) secured a perimeter while awaiting the arrival of a canine unit.

Shortly thereafter, an officer at the perimeter spotted two black males, "fully clothed," "come out ... from behind a residence and then run back in." "Under a minute" later, two black men "came back out .., not clothed ... [and were] [s]weating pretty profusely." With hands raised, the two men shouted "[w]e just got robbed, we just got robbed." The officers "[took] them into custody[ and] place[d] them in the back of" a police car, awaiting further instruction.

Inside the perimeter and assisted by a dog tracker, officers (including Barcelona) recovered various items. By one side of a house they found "a black plastic Halloween-style mask on the ground," and underneath the other side they found another such mask and two firearms.¹ Before completing their search, the unit discovered two cellular phones on the ground and "a pair of blue jean shorts and a pair of white Nike shoes" nearby.

Upon returning to the perimeter, Barcelona went to the police car, where he "observed Mr. Kadeem Burden [ ] wearing only black or dark-colored under-wear and some socks, and Mr. Scott was only wearing ... [b]lue jean-style shorts." Based on their general physical appearance, Barcelona "firmly believe[d] that those were the two individuals [he] observed shooting the firearms," though he had not seen the shooters’ faces uncovered.

DNA and forensic examination linked Burden to one of the weapons and Scott to both phones and one of the masks. Further examination established that the nineteen bullets came from one or both of the firearms discovered at the scene.

II.

Burden and Scott were charged in an indictment alleging solely that they, "having each individually been convicted of a crime punishable by imprisonment for a term exceeding one year, a felony, knowingly did possess firearms ... [that] had previously been shipped and transported in interstate commerce" in violation of 18 U.S.C. § 922(g)(1). The indictment did not allege that they knew of their felon status at the time of their possession, though both stipulated at trial that they were in fact felons at the time of their arrest.

Days after his federal arrest, Burden admitted to the Louisiana Parole Board that he had violated the conditions of his state parole by possessing a firearm. That prompted Scott to file a severance motion, which the district court denied. Notwithstanding that denial, the court instructed the jury that it was not to consider Burden's admission as evidence against Scott.

At trial, evidence was presented establishing that the defendants, upon surrendering to the officers, had claimed that they had just been robbed of their clothing (presumably by the shooters). That jury failed to reach a verdict.

Before the second trial, the district court ordered that the parties obtain its prior approval before "mention[ing] or elicit[ing] any testimony" regarding the supposed robbery. No party objected; neither did any party proceed to seek such approval. The second jury thus heard nothing about the defendants’ robbery-related statements. After receiving the court's instructions outlining the elements of the crime—including that "[t]he government must prove that the defendant knew that he possessed a firearm, but not that the defendant knew that he was a qualifying felon"—the second jury found both men guilty.

The final presentence reports ("PSRs") recommended finding that the defendants "used and possessed" the firearms "in connection with attempted first degree murder." Neither defendant objected to his PSR, whose findings the district court therefore adopted.

III.

The appeal presents four broad issues: (1) the denial of Scott's motion for severance, (2) errors relating to the defendants’ knowledge (or lack thereof) that they were felons at the time of the incident, (3) the district court's limitation on evidence or testimony regarding the defendants’ robbery claims, and (4) the cross-reference to attempted first-degree murder at sentencing.

A.

A criminal defendant enjoys "the right ... to be confronted with the witnesses against him." U.S. CONST. amend. VI. "Ordinarily, a witness whose testimony is introduced at a joint trial is not considered to be a witness ‘against’ a defendant if the jury is instructed to consider that testimony only against a codefendant." Richardson v. Marsh , 481 U.S. 200, 206, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). There is, however, "a narrow exception to this principle: ... [W]hen the facially incriminating confession of a nontestifying codefendant is introduced at [a] joint trial," it is not enough for "the jury [to be] instructed to consider the confession only against the codefendant." Id . at 207, 107 S.Ct. 1702. See also Bruton v. United States , 391 U.S. 123, 135–36, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

Otherwise, "even if prejudice is shown ... [Rule 14] leaves the tailoring of the relief to be granted, if any, to the district court's sound discretion." Zafiro v. United States , 506 U.S. 534, 538–39, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). "[A] district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Id . at 539, 113 S.Ct. 933. "When the risk of prejudice is high, a district court is more likely to determine that separate trials are necessary, but ... less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice." Id . And generally speaking, "juries are presumed to follow [such] instructions." Id . at 540, 113 S.Ct. 933.

The district court denied severance. We review that denial for abuse of discretion. See id . at 541, 113 S.Ct. 933. That review is "exceedingly deferential," requiring that "[t]he appellant [ ] show that (1) the joint trial prejudiced him to such an extent that the district court could not provide adequate protection; and (2) the prejudice outweighed the government's interest in economy of judicial administration." United States v. Xie , 942 F.3d 228, 240–41 (5th Cir. 2019) (quotation marks omitted).

Scott, for his part, recognizes the herculean nature of his task. He "acknowledges the challenge he faces with the Supreme Court[’s] holding [in Marsh , 481 U.S. at 211, 107 S.Ct. 1702, that] ‘the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when ... the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence.’ " Such redaction did occur, Scott concedes: "Burden's statement did not mention Scott, and other evidence was [indeed] needed to show the linkage to [Scott]."

Scott would have us nevertheless hold that the district court abused its discretion. Although Burden's redacted statement made no mention of Scott, "the effort needed to" link the statement to Scott "was slight, and the prejudice was great, since the whole focus of the Government's case was that only two shooters were involved, and the only two shooters were the defendants on trial." And the jury instruction not to consider Burden's statement as evidence against Scott "was equivalent to asking the jurors not to look at the proverbial pink elephant, inevitably the other defendant before them."²

That contention is without merit. "The key analytic factor in [ Marsh ] is that the statement did not clearly refer to the defendant and could only be linked through additional evidentiary material." United States v. Powell , 732 F.3d 361, 376–77 (5th Cir. 2013). Scott claims that Burden's statement should be distinguished because other evidence too easily allowed him to be linked to the statement, but "the source of the linking factors ... [is not] significant. Rather, [ Marsh ] focuses on whether the statement facially implicates the defendant—or at least...