United States v. Cannon

• Decision Date: 03 February 2021
• Docket Number: No. 16-16194,16-16194
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lance CANNON, Vincent Holton, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

987 F.3d 924

UNITED STATES of America, Plaintiff-Appellee,

v.Lance CANNON, Vincent Holton, Defendants-Appellants.

No. 16-16194

United States Court of Appeals, Eleventh Circuit.

February 3, 2021

Daniel Matzkin, Aileen Cannon, Jamie Galvin, Assistant U.S. Attorney, Nalina Sombuntham, Benjamin Widlanski, U.S. Attorney Service - Southern District of Florida, U.S. Attorney Service - SFL, Emily M. Smachetti, U.S. Attorney's Office, Miami, FL, for Plaintiff-Appellee.

Richard Lawrence Rosenbaum, Richard Rosenbaum, PA, Fort Lauderdale, FL, for Defendant-Appellant Lance Cannon.

Gregory Antonio Samms, Law Office Of Gregory A. Samms, PA, Coral Gables, FL, for Defendant-Appellant Vincent Holton.

Vincent Holton, FCI Pollock - Inmate Legal Mail, Pollock, LA, Pro Se.

Before WILLIAM PRYOR, Chief Judge, HULL and MARCUS, Circuit Judges.

HULL, Circuit Judge:

After a jury trial, Lance Cannon and Vincent Holton appeal their convictions for conspiracy to commit Hobbs Act robbery, conspiracy to possess with intent to distribute cocaine, using and carrying a firearm during a crime of violence and a drug trafficking crime, and possession of a firearm by a convicted felon. Cannon and Holton, bringing guns with them, participated in a plan to rob a stash house containing 18 kilograms of cocaine. As it turns out, one participant was an undercover detective and the stash house was fake. On appeal, Cannon and Holton raise multiple issues as to their convictions. After careful review, and with the benefit of oral argument, we affirm.

I. FACTS

The trial evidence included witness testimony as well as audio, and in some cases video, recordings of seven meetings as detailed below.

A. June and July 2015 Meetings

The Drug Enforcement Administration ("DEA") encountered Cannon and Holton through its investigation of a target named Owen Nunez. The DEA opened its investigation into Nunez based on information supplied by a confidential informant ("CI") named Miguel Gonzalez, who knew Nunez was a drug dealer. Gonzalez had prior felony convictions, made a living as a CI, and worked for multiple federal law enforcement agencies.

The DEA arranged for the CI to meet Nunez on June 22, 2015, to discuss future drug transactions. On his own initiative, Nunez invited two other individuals—Cannon and an unknown associate. During the meeting, Cannon discussed with the CI Gonzalez the potential sale of 30 kilograms of cocaine at a price of $28,000 per kilogram.

Cannon offered the CI the opportunity to sample the product.

On June 24, 2015, Nunez, Cannon, and the CI Gonzalez met again to discuss the drug deal. This time, Cannon brought Holton with him. Cannon introduced Holton as someone who could transport drugs for the CI if needed, stating, "wherever you want it to go, he drives." Cannon also told the CI: "Anything let me tell you something you ever need ... come, come to me." Cannon indicated he was talking about transportation. Cannon also said that the CI could come to him if anybody ever "play[ed] with [him]"—that is, interfered with his drug dealings—or was "fucking with [his] shit." Cannon confirmed that the cocaine price was $28,000 per kilogram.

On July 16, 2015, the CI met again with Nunez, Cannon, and Holton. The CI asked Cannon and Holton for a one-kilogram sample of the cocaine prior to the deal because the CI was going to be carrying so much money and wanted to "feel ... safe." Holton offered to bring "everything to ... the place," but the CI indicated he just wanted a one-kilogram sample. Later, Cannon and Holton had to "do the math" on 30 kilograms of cocaine at $28,000 per kilogram, which came out to $840,000. After Cannon and Holton left the meeting, the CI told Nunez "these people are liars" and said he had a "bad feeling" about the transaction.

After the third meeting, the DEA stopped investigating Cannon and Holton based on "red flags" indicating they were going to rob the CI. One red flag was that Cannon and Holton did not seem to know how much money they were to receive as a result of the drug deal.

B. October 23 and 28, 2015 Meetings

Subsequently, the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") took over the investigation from the DEA. The CI informed the ATF that Cannon was interested in committing a home invasion robbery for drugs. The CI had placed a series of recorded phone calls to Cannon and prefaced some by noting for law enforcement that the ensuing call would concern a cocaine robbery. During the calls, however, the CI did not specifically mention a robbery to Cannon. Instead, the CI referred to the need to talk soon about a potential job and the possibility of working together.

After receiving the CI's tip that Cannon was interested in committing a robbery, the ATF arranged for a meeting on October 23, 2015, between Cannon, the CI, and Kenneth Veloz—an undercover ("UC") detective with the Miami-Dade Police Department and ATF task force officer. The October 23 meeting took place in a restaurant parking lot. The CI introduced the UC detective to Cannon as his godson. The UC presented himself as a disgruntled drug courier who was not being paid what he was owed. The UC proposed to Cannon stealing 10 to 20 kilograms of cocaine from his employers’ stash house. Cannon said he had a "team" that could assist with the job.

The UC detective informed Cannon that at least one of the stash house guards was "always strapped," or armed, and warned Cannon that guns would be involved. Cannon discussed with the CI the need to meet after the robbery to split up the stolen cocaine. When the UC detective expressed concern that the stash house guards would not "give up just like that," Cannon promised the UC that the guards were going to "lay the fuck down ... [o]ne way or another." The UC asked Cannon if he had the "gear," meaning the weapons and equipment necessary to do the robbery, and Cannon told him not to worry.

On October 28, 2015, Cannon met again with the CI Gonzalez and the UC detective.

Holton also attended. The UC detective explained that his employers were paying him only half of what he was owed. Holton then asked why he had waited so long to rob them. Holton suggested that the robbery would look better and go more smoothly if the UC was "tak[en] down too," as if he was one of the guards.

Holton asked whether the guard who would open the door for the UC detective would be "strapped." The UC responded that it depended, but that this individual would not have a weapon in his hand. Holton said that if the individual reached for a weapon, he and Cannon would have to protect each other's lives, but that he would prefer to "keep it clean" and "leave smelling like a rose." Holton also expressed that this was not a new situation for him and that he had more than 20 years’ experience.

Later, the UC detective indicated that Cannon and Holton should tell him if the robbery was something they could not handle. Holton responded that it was a "simple job" because the UC had "inside info." Holton also said it was an "easy" job but only if it was "worth it," and he asked the UC what "the take" was. The UC told him there would be 10 to 20 kilograms of high-quality, pure cocaine.

The parties then discussed certain logistics. Holton told the UC detective he would need to give him a sign when it was time to rush the door. The UC indicated he would put his glasses up. Holton said he would enter first and throw the UC out of the way, with Cannon following behind. Cannon added that he would aim his gun at the UC. The UC offered to provide Cannon and Holton a van with a trap door in it. Holton suggested that he and Cannon arrive at the robbery dressed as DEA agents and that this was "the best way to do it." Holton later asked the UC if he had any "clean tools"—guns not previously used in a crime. The UC said he did not deal with guns, to which Holton responded, "[w]e got it."

Holton indicated that after the robbery he wanted to quickly unload the stolen cocaine and dump his gun. Cannon told the UC: "[T]he only thing my mind [is] focused on, is making sure you go in smelling like a rose and you come out [the same]—that's my job." Cannon said that he and Holton would "take care of everything else." Cannon and Holton added that if the UC at any point felt threatened, they would "just go ahead and handle that problem."

C. November 5, 2015 Meeting

On November 5, 2015, Cannon, Holton, the CI, and the UC detective met again and continued going over the logistics of the robbery. Holton indicated that he and Cannon might want to use the van the UC had proposed. Holton discussed with the UC the possibility that there might be more drugs in the stash house than the UC planned to pick up from his employers. If that was the case, Holton said, they were going to "take all of that shit," but split everything fifty-fifty with the UC. The UC again indicated that at least one guard would be armed. Cannon responded they would take it as if everyone was "strapped." The UC asked Cannon and Holton if they were good with the plan and said it was "no sweat" if they could not handle it. Holton laughed and said if things did not look good, they would let the UC go about his business.

Holton then stated that he and Cannon would wait in a "blind spot" while the UC went to the door of the stash house. Holton and Cannon would then quickly follow behind. Holton said that they were going to tie up the guards—and the UC, Cannon added—and take their guns and car keys. Cannon and Holton would do a thorough search of the stash house to make sure they did not miss any cash or drugs. Holton later stated, "sooner or later I'm [going to] retire from this shit." Holton also mentioned possibly bringing a third person, a driver, along to the robbery.

D. November 13, 2015 Robbery

On November 13, 2015, the day the robbery was to occur, Cannon, Holton and an individual named Nathaniel Stubbs met with the CI a final time. The UC detective was not present. The CI confirmed there would be 18 kilograms of cocaine in...