United States v. Davis

• Decision Date: 22 November 2016
• Docket Number: No. 15-10927,15-10927
• Citation: 841 F.3d 1253
• Parties: United States of America, Plaintiff–Appellee, v. Keenan Aubrey Davis, Kelsey Videl Coffee, Defendants–Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

841 F.3d 1253

United States of America, Plaintiff–Appellee,

v.Keenan Aubrey Davis, Kelsey Videl Coffee, Defendants–Appellants.

No. 15-10927

United States Court of Appeals, Eleventh Circuit.

November 22, 2016

Cherie Krigsman, Yvette Rhodes, Susan Hollis Rothstein–Youakim, Arthur Lee Bentley, III, U.S. Attorney's Office, Tampa, FL, Shawn P. Napier, U.S. Attorney's Office, Orlando, FL, for Plaintiff–Appellee.

Michelle P. Smith, Law Office of Michelle P. Smith, PA, Orlando, FL, for Defendant–Appellant Keenan Aubrey Davis.

Charles M. Greene, Paetra Terry Brownlee, Charles M. Greene, PA, Orlando, FL, for Defendant–Appellant Kelsey Videl Coffee.

Before MARTIN and JORDAN, Circuit Judges, and VINSON,^* District Judge.

VINSON, District Judge:

The verdict form is one of the most important parts of a criminal jury trial, but it often receives the least attention. This is a case in point.

The defendants here were charged (and found guilty of several counts) in an eight-count superseding indictment. The verdict forms that were given to the jury mistakenly listed one of the counts as “robbery” instead of “using a firearm during and in relation to [a robbery].” Everyone missed the error—the defendants and the government (who jointly submitted the verdict forms), the district court judge, and court personnel—and the error was later transposed onto the defendants' written judgments, where it was not discovered until more than five months after the trial. When the district court learned of the error, it gave the parties notice and amended the judgments under Rule 36 of the Federal Rules of Criminal Procedure

, which provides in full: “After giving any notice it considers appropriate, the court may at any time correct a clerical error in a judgment, order, or other part of the record, or correct an error in the record arising from oversight or omission.” The defendants argue on appeal that the amendment was improper and that the original (erroneous) judgments should be reinstated, consistent with what the jurors found.¹ After close review and oral argument, we conclude that the district court properly amended the judgments and we affirm.

I.

Between May and September 2013, there was a string of six retail robberies in and near Orange County, Florida. The robbers wore gloves and hid their faces behind masks. Eventually, Keenan Davis was arrested and charged with all six robberies, while his friend Kelsey Coffee was charged in connection with five of the six. These robberies were carried out with help from numerous accomplices, including, among others, Tiandre Rogers, Moses Patterson, Danoris Scott, and Jamal Tillman, each of whom pled guilty and (except for Tillman) agreed to testify for the government. Davis and Coffee opted to go to trial, where the evidence against them (viewed in the light most favorable to the government) showed the following with respect to the six robberies.

(1) On the morning of May 10, 2013, Davis, Rogers, Patterson, and Scott robbed the manager of Rack Room Shoes at an outlet mall in Orlando as she left the store with a bank deposit. The robbery was Patterson's idea as he worked at the store and knew when the manager left for the bank. Patterson waited outside and alerted the others when she exited the store, at which point Davis and Scott sprayed her with mace and grabbed the deposit, while Rogers drove the getaway car. No firearm was used during this first robbery, and there is no evidence that Coffee was involved.

(2) On May 26, 2013, Davis (carrying a shotgun) and Patterson (carrying an “airsoft” gun that looked like a real pistol² ) robbed a Levi's store just a few doors down from the Rack Room Shoes. Scott served as lookout and Rogers drove the getaway car. It was the government's theory that this second robbery was carried out with “inside help” from Coffee, who worked at the store and was friends with Davis, Patterson, Scott, Rogers, and Tillman. After the robbery, Davis, Patterson, Scott, and Rogers met at a hotel room to divide the $36,000 that they stole. Davis and Patterson took pictures of themselves posing with the money.³

(3) Early in the morning on July 30, 2013, Coffee, Davis, Patterson, and Rogers robbed an Oshkosh b'Gosh store at the outlet mall. Coffee carried the shotgun and Patterson carried the airsoft gun. They removed a 300–pound safe from the store, which they later discovered contained only about $2,000 in cash, gift cards, and a couple of iPads.

(4) On August 5, 2013, Coffee, Davis, and Patterson robbed a McDonald's in Apopka, Florida. Once again, Coffee carried the shotgun and Patterson carried the airsoft gun. They tied up all the employees with “zipties” and took what they could from the safe, which was only about $700.

(5) In early August 2013, Davis exchanged a series of text messages with Cavoniss Lewis, a friend who worked at a Sweetbay Market grocery store. Davis tried to convince Lewis to help them rob the store, and he assured her in one of his texts that “we have all the answers and tools to perform the job perfectly,” but she refused to participate. Thereafter, on August 20, 2013, Davis, Coffee, Patterson, and Scott robbed the Sweetbay Market without Lewis's help. The group used the shotgun and airsoft pistol for this robbery, which was confirmed by three employees who testified at the trial and video from the store's surveillance camera that was played to the jury. When Lewis learned of the robbery afterward, she felt uncomfortable and thought that she should say something. She contacted the store's human resources department, which, in turn, contacted the police. Lewis subsequently gave the police access to her phone and previous text messages with Davis.

(6) Finally, on September 7, 2013, Coffee, Davis, and Patterson (with help from Rogers, Scott, Tillman and others) robbed a Nike outlet at a mall in Ellenton, Florida. The group drove to the outlet mall in two separate cars and, upon arrival, they split up. Coffee walked past the Nike store to survey the area; Davis sat at a nearby table to get prepared; and Patterson walked through the parking lot toward the store with a dust broom, dust pan, and black plastic trash bag in order to avoid suspicion. Unbeknownst to them, they were under police surveillance at the time. While Patterson was on his way to the Nike store, one of the undercover officers on the surveillance team saw him walk right in front of the officer's car, sit down on the curb, put on gloves, and start to pull a mask or “something” over his face.⁴ The officer also noticed that Patterson was carrying what appeared to be a shotgun inside the plastic trash bag. Patterson saw the undercover officer watching him and got worried that “something was up,” so he went back to his car and put the dust broom, dust pan, and trash bag inside the trunk and, in his words, “replaced” the shotgun. At or around this point, there was a delay as the group began to have a disagreement about whether they should go forward with the robbery. Because there were so many people at the outlet mall and in the parking lot, some members of the group began to think it was a “bad idea” and wanted to back out.⁵ Davis and Coffee insisted on moving forward with the plan, however, and eventually the two men entered the Nike store armed with only the airsoft pistol. They tied up all the employees with zipties and emptied the safe of approximately $15,000. As they left, the police and members of the SWAT team converged on the scene. Tillman was arrested in front of the Nike store; Davis and Coffee were arrested after trying to flee on foot; and Patterson was arrested while attempting to drive the getaway car with Rogers and Scott. The shotgun was found in the trunk of the getaway car, along with a loaded Taurus handgun on the floorboard.

The defendants were charged in a multi-count indictment. Counts 1, 2, 4, 5, 6, and 8 charged robbery in violation of 18 U.S.C. § 1951(a)

(for the Rack Room Shoes, Levi's, Oshkosh b'Gosh, McDonald's, Sweetbay Market, and Nike store robberies, respectively), while Counts 3 and 7 charged the possession and use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A) (for the Levi's and Sweetbay Market robberies, respectively).⁶ As previously indicated, all of the other co-defendants pled guilty and several agreed to testify for the government. Davis and Coffee elected to go to trial, and their defense was that the others were lying and had falsely accused them in order to get sentence reductions.

Throughout the trial, the jury was repeatedly told that there were two groups of offenses. For example, the district court judge read the superseding indictment to the jury pool during voir dire , which clearly delineated the robbery and firearm offenses. Similarly, the government told the jury during its opening statement that the defendants were both charged with several counts of robbery and “two counts of using a firearm, brandishing a firearm in relation to or in furtherance of those robberies.” Counsel for Coffee likewise told the jury during opening statement that there were several counts, that the government had correctly “summarized” those counts, and that careful attention should be paid to each one as “[t]here are some charges of robbery of separate stores and there are some charges relating to the possession of firearms.”

The closing arguments to the jury similarly highlighted that the two firearm offenses in Counts 3 and 7 were separate and distinct from the robbery charges. For example, after discussing the robberies themselves, the government told the jury about “the two other crimes:”

[I]t's a separate federal crime for anyone to use a firearm in relation to or carry a firearm during and in relation to or possess a firearm in furtherance of a crime of violence. The elements you have to show there, the defendant committed a violent crime as charged in counts 3 and 7. There's two counts of using the firearm.

The government further told the...