United States v. Dean

• Decision Date: 29 December 2015
• Docket Number: 15–1349.,Nos. 15–1263,s. 15–1263
• Citation: 810 F.3d 521
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Levon DEAN, Jr., Defendant–Appellant. United States of America, Plaintiff–Appellee v. Jamal Dean, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

810 F.3d 521

UNITED STATES of America, Plaintiff–Appellee
v.
Levon DEAN, Jr., Defendant–Appellant.

United States of America, Plaintiff–Appellee
v.
Jamal Dean, Defendant–Appellant.

Nos. 15–1263
15–1349.

United States Court of Appeals, Eighth Circuit.

Submitted: Sept. 24, 2015.
Filed: Dec. 29, 2015.
Rehearing and Rehearing En Banc Denied Feb. 12, 2016.^*

810 F.3d 524

Alan Stoler, argued, Omaha, NE, for appellant Levon Dean, Jr.

Stuart J. Dornan, argued, Omaha, NE, for appellant Jamal Dean.

Forde Fairchild, AUSA, argued, Sioux City, IA, for appellee.

Before LOKEN, BEAM, and SHEPHERD, Circuit Judges.

BEAM, Circuit Judge.

Levon and Jamal Dean, brothers, appeal their convictions and sentences arising out of armed robberies of two Sioux City area drug dealers in violation of the Hobbs Act,¹ 18 U.S.C. § 1951, and related counts.² We affirm the district court.

810 F.3d 525

I. BACKGROUND

Viewed in the light most favorable to the prosecution, the trial evidence established the following facts. On April 15, 2013, Jessica Cabbell visited her friend Reggie Galvin in South Sioux City, Nebraska. Sarah Berg was also at Galvin's, and Cabbell, a prostitute, told the other two she was scheduled to have a "date" with J.R., who was a known methamphetamine and marijuana dealer from LeMars, Iowa, later that night. Both women had previously dealt with J.R. as a drug dealer and had exchanged sex for drugs with him. However, J.R. apparently owed Berg money based upon the previous dealings, or according to Berg, had taken $400 of her money. Berg expressed a desire to collect that money. Berg and Galvin decided that in order to collect the money J.R. owed, they would need "muscle." It was agreed that the Dean brothers would provide the muscle.

The Deans arrived at Galvin's house, and then Berg, Cabbell, and the Deans proceeded to the Palmer House Motel in Sioux City, Iowa, where Cabbell's "date" with J.R. was to take place. Cabbell had informed J.R. that another woman would join them at some point, but did not tell J.R. that it would be Berg. Cabbell arrived alone at J.R.'s room, and she and J.R. smoked methamphetamine together. A bit later, Berg and the Deans arrived. Berg immediately confronted J.R. about the stolen money, while Jamal pulled a gun on J.R. and demanded the money in question. Meanwhile, Levon ransacked the room looking for money and drugs. Cabbell left the scene because she alleges she did not know a firearm would be involved. When J.R. reached for his car keys, Jamal hit J.R. on the head with the gun, and Berg took J.R.'s car keys, cell phone, and a pipe containing methamphetamine. Jamal threatened to kill J.R. if he called police. With Berg driving, Berg and the Deans drove away in J.R.'s car. Despite Jamal's warning, J.R. used the motel manager's cell phone to call 911 and report the robbery. Cabbell, Berg, and the Deans again met up at Galvin's house in Nebraska after the robbery and lamented the lack of spoils from the robbery.

On April 24, 2013, Levon and Jamal robbed another methamphetamine dealer (C.B.) in the dealer's home, at gunpoint. Jamal hit C.B. with his gun, and the Deans stole approximately $300 in cash, about 20 grams of methamphetamine, a digital scale, electronic and computer equipment, and old cell phones. The Deans ordered Hope Marsh, who was living there, to pack her stuff because she was to come and live with them. She apparently complied, and the trio drove away in C.B.'s two cars. Sioux City police issued arrest warrants for the Deans, and Levon was arrested in Sioux City pursuant to the warrant. On April 29, police attempted to pull over a vehicle Jamal was riding in during a traffic stop. Because he knew about the warrant, Jamal instructed the car's driver to try to evade police. When the driver eventually did stop the car, Jamal jumped out and shot his rifle in an attempt to evade capture. Jamal eventually disposed of the loaded weapon in a nearby alley trash dumpster and escaped from authorities. He was eventually arrested in Texas in May 2013.

In April 2014, an eleven count, Third Superseding Indictment was returned

810 F.3d 526

charging Jamal, Levon, and Berg with: conspiracy to commit robbery under the Hobbs Act, in violation of 18 U.S.C. § 1951 (Count 1); Hobbs Act robbery, in violation of 18 U.S.C. §§ 2 and 1951 (Counts 2 and 3); carjacking, in violation of 18 U.S.C. §§ 2 and 2119(1) (Counts 4 and 5); possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. §§ 2, 924(c)(1)(A)(ii), and 924(c)(1)(C)(i) (Counts 6 and 7); being felons in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 922(g)(3), and 924(a)(2) (Counts 8 and 9); and interstate transportation of a stolen vehicle, in violation of 18 U.S.C. §§ 2 and 2312 (Counts 10 and 11).³ All three defendants filed motions to sever in which each argued that Berg's trial should be severed and tried separately. A magistrate judge⁴ severed Berg's trial from the Deans', and Berg ultimately pleaded guilty to several counts and testified at trial against the Deans.

On August 29, 2014, the jury returned a verdict finding Jamal guilty on the offenses charged in Counts 1, 2, 3, 4, 6, 7, and 8, and acquitted him of the charges in Counts 5 and 9. The jury found Levon guilty of the charges in Counts 1, 2, 3, and 8, and acquitted him of the charges in Counts 4, 5, and 9. In addition, Levon was acquitted of the primary charges in Counts 6 and 7, but was found guilty on each count of the lesser included offense of possessing a firearm in furtherance of a crime of violence. The district court denied the motions for judgment of acquittal prior to the jury's verdict, and the post-trial motions for judgment of acquittal and new trial. Jamal's sentencing Guidelines range was 140–175 months in addition to mandatory consecutive minimums of seven and twenty-five years on the 18 U.S.C. § 924(c) counts. See 18 U.S.C. § 924(c)(1)(D)(ii) (mandatory consecutive sentence). However, the district court varied upwards to sentence Jamal to life in prison. Levon was sentenced to 400 months, which included a 360–month mandatory minimum consecutive sentence for the § 924(c) offenses. Without the mandatory minimums, Levon's Guidelines range was 84–105 months. Thus, the district court gave Levon a substantial downward variance of 40 months for the Guidelines sentence, which was by statutory directive consecutive to the 360–month mandatory sentence.

On appeal, Levon challenges the sufficiency of the evidence to establish a nexus to interstate commerce required for the Hobbs Act robberies; the sufficiency of the evidence for his firearm convictions; and the reasonableness of his sentence. Jamal argues the court erred in refusing to exclude in limine any reference to gangs or gang affiliation; there was insufficient evidence of the nexus to interstate commerce for the Hobbs Act robberies; the district court erred in refusing to give supplemental jury instructions regarding the nexus to interstate commerce; the government proved multiple, as opposed to a single, conspiracy and the district court's failure to give a proffered jury instruction in that regard; there was insufficient evidence to convict him of carjacking; the district court should have granted a new trial in the interests of justice; and his life sentence, imposed after the district court heard hearsay testimony at the sentencing hearing, was procedurally flawed and violates due process.

810 F.3d 527

II. DISCUSSION

A judgment of acquittal is only appropriate if the evidence is insufficient to sustain a conviction. Fed.R.Crim.P. 29(a). A guilty verdict should be overturned only if, after viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Sanchez, 789 F.3d 827, 834 (8th Cir.2015). Like the district court, we view the evidence in the light most favorable to the guilty verdict, and grant all reasonable inferences that are supported by that evidence. Id.

A. Hobbs Act

Both defendants assert that there was insufficient evidence linking the robbery of J.R., C.B., or both to interstate commerce to support a Hobbs Act violation. The district court denied this point in the post-trial motions, noting that our precedent quite liberally construes the nexus-to-commerce requirement in the Hobbs Act. Indeed, where a federal statute has an express jurisdictional nexus-to-commerce requirement, the crime's actual connection to interstate commerce may be quite small. United States v. McAdory, 501 F.3d 868, 871 (8th Cir.2007).

The Deans reference a three-part test (originating in the Fifth Circuit, but cited with approval in United States v. Quigley, 53 F.3d 909, 910–911 (8th Cir.1995) ) to determine whether there is an adequate nexus to interstate commerce in a Hobbs Act case involving robbery of a drug dealer: (1) whether the robbery affected the victim's ability to buy and sell drugs in interstate commerce; (2) whether there is a likelihood that as a result of the robbery, the victim would have to deplete the assets of an...