United States v. Elysee

• Citation: 993 F.3d 1309
• Decision Date: 08 April 2021
• Docket Number: No. 18-14214,18-14214
• Parties: UNITED STATES of America, Plaintiff – Appellee, v. Dave ELYSEE, Defendant – Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

993 F.3d 1309

UNITED STATES of America, Plaintiff – Appellee,

v.Dave ELYSEE, Defendant – Appellant.

No. 18-14214

United States Court of Appeals, Eleventh Circuit.

April 8, 2021

Jason A. Reding, AUSA, Scott Dion, Emily M. Smachetti, U.S. Attorney's Office, Nicole D. Mariani, U.S. Attorney Service - SFL, Miami, FL, Phillip Drew DiRosa, U.S. Attorney's Office, Fort Lauderdale, FL, for Plaintiff - Appellee.

Ian McDonald, Michael Caruso, Federal Public Defender, Federal Public Defender's Office, Arun Ravindran, Hedin Hall, LLP, Miami, FL, Andrew L. Adler, Federal Public Defender's Office, Fort Lauderdale, FL, for Defendant - Appellant.

Before NEWSOM, TJOFLAT, and GINSBURG,^* Circuit Judges.

TJOFLAT, Circuit Judge:

Defendant Dave Elysee appeals his conviction and sentence for possessing a firearm while a felon in violation of 18 U.S.C. § 922(g)(1). This appeal presents four issues: (1) whether the District Court abused its discretion in excluding out-of-court statements as hearsay when they were not offered to prove the truth of the matter asserted; (2) whether the District Court abused its discretion in admitting an unredacted copy of Elysee's prior firearm conviction; (3) whether the Florida offense of armed robbery is a violent felony under the Armed Career Criminal Act; (4) and whether Elysee's indictment was insufficient under Rehaif , and if so, whether the insufficiency affected his substantial rights.

The first issue (hearsay) turns out to be particularly muddled because of the piecemeal way it was presented at Elysee's trial. The issue was litigated in a series of in limine hearings throughout the trial, and although it raised a novel sub-issue—whether a defendant may introduce, as a defense to his prosecution, evidence that the police failed to conduct a reasonably diligent investigation into the charged crime—there was no briefing as to its legal foundation. Accordingly, our discussion focuses on the oft unclear back-and-forth between the District Court and counsel. We take pains to interpret and expound the significance of these colloquies in a string of "Commentaries" interspersed throughout the opinion.

But first, we begin with the facts that gave rise to Elysee's § 922(g)(1) offense.

I.

A.¹

Early in the morning of March 4, 2018, Dwayne Ireland and Chris Wilson, officers in the City of Homestead Police Department, were working undercover on an unrelated investigation on SW 4th Street in Homestead.² Ireland was stationed on the sidewalk on a bicycle. He was inconspicuous, wearing black shorts and a tan hoodie that only partially covered his lengthy dreadlocks. Wilson was sitting in an unmarked police car nearby, providing Ireland with coverage and security.

The officers saw two cars, a Kia Optima followed by a Ford Mustang, run a stop sign. The Optima came to an abrupt stop, and Defendant Elysee jumped out of the passenger side of the car and pointed a gun at the Mustang. Ireland recognized Elysee as someone he had previously arrested.³ Elysee was dressed the same as when Ireland encountered him months ago—he had yellow sneakers, and both his shirt and pants were blue and yellow.

The Mustang sped off, and the Optima's driver, who was dressed in black, told Elysee to get back in the car. He got in, and the Optima sped away.

Officer Wilson, whom Officer Ireland had alerted by radio, followed the Optima and provided its license plate number to dispatch. Officer Raul Rodriguez, on patrol in a marked police car, received the information and headed toward Wilson's location. Upon arriving, Rodriguez pulled in front of Wilson's car and took the lead position behind the Optima. Officer Eric Reyes, who had been alerted by radio, appeared in his marked police car and fell in behind Rodriguez. Together, they pulled the Optima over. Rodriguez stopped his police car along the passenger side of the Optima, and Reyes positioned his car next to the driver's side. Reyes, on a loud speaker, ordered the driver to exit his car with his hands up. Moments later, the Optima sped off, causing Officers Rodriguez and Reyes to give chase. Sergeant Carlos Garcia, driving a marked police car, fell in behind them.

During the ensuing high-speed chase, the Optima turned into a warehouse. Knowing that there was only one exit on the other side of the warehouse, Garcia broke off from the other officers and waited to see if the Optima would come out of that exit. It did, and Garcia pursued it.

With Garcia in close pursuit and the other officers not far behind, the Optima hit a light pole, and its front seat airbags activated. While the Optima was slowly rolling to a stop, Garcia positioned his police car six feet from its passenger side. His car's "high beam[ ]" headlights, "LED spotlight," and "takedown lights" focused on the Optima's passenger side. The passenger door opened, and a man got out. He was "holding a black firearm with both hands" and "look[ed] back at" Garcia. Garcia noticed that he was wearing "a yellow and blue ... sport type top." Officer Wilson, who had arrived at the scene moments after the Optima crashed, was about twenty feet from the car's passenger door when the man got out of the car.⁴ He observed that he was "wearing a ... blue and yellow shirt, yellow shoes."

After the man looked back at Garcia, he dropped the firearm and started running toward the front of the Optima then away from the driver's side of the car. Wilson pursued the man but lost sight of him. He searched the area and ultimately found the man in the fetal position on the floorboard of a parked car. Wilson placed him under arrest and returned to the scene of the crash. Meanwhile, Officer Rodriguez found a 9mm handgun, which was equipped with a loaded 18-round magazine, near the right front tire of the Optima. Officer Ireland arrived moments later and identified the man as Elysee, the man who pointed the gun at the Mustang on SW 4th Street.

B.

The week after Elysee was arrested,⁵ Darius Deen, the other occupant of the Optima, appeared at the Homestead Police Station and told Detective Raul Cabrera that he, not Elysee, was the Optima's passenger and that the firearm found at the scene was his. At the time, Cabrera was a member of the Task Force that the United States Bureau of Alcohol, Tobacco, Firearms and Explosives had formed with officers of the Homestead Police Department ("ATF Task Force").

Soon after Elysee's arrest, the ATF Task Force assumed the investigation of the case, and on April 6, 2018, a Southern District of Florida grand jury indicted Elysee for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He entered a plea of not guilty and stood trial. A jury found him guilty as charged.

Elysee's Presentence Investigation Report ("PSI") identified him as an armed career criminal under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), because he had one prior Florida conviction for aggravated assault with a deadly weapon and three prior Florida armed robbery convictions. At sentencing, Elysee argued that his PSI incorrectly identified him as an armed career criminal under the ACCA because his prior convictions did not qualify as violent felonies. The District Court disagreed and sentenced him to 235 months' imprisonment.⁶

C.

Elysee now appeals his conviction and sentence, arguing that his conviction should be reversed for three reasons. First, the District Court abused its discretion in precluding him from questioning Detective Cabrera about the substance of Deen's confession to show its "effect on the listener." Second, the District Court abused its discretion in admitting into evidence, under Federal Rule of Evidence 404(b), the document establishing Elysee's prior conviction for armed robbery without redacting the document's references to "armed robbery" and "deadly weapon." Third, the indictment was insufficient to charge a 18 U.S.C. § 922(g) offense under the Supreme Court's decision in Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019), which was decided after Elysee's conviction. We consider the merits of these arguments in parts II, III and IV that follow.

Elysee also argues that his sentence should be vacated on one ground: the District Court erred in ruling that a prior conviction for armed robbery under Florida law qualifies as a "violent felony" under the ACCA. We consider the merits of that argument in part V.

II.

Darius Deen appeared at the Homestead Police Station a week after Elysee's arrest and told Detective Cabrera that he, not Elysee, was the passenger of the Optima at the time of the crash and owned the handgun found at the scene. Elysee argues that the District Court abused its discretion in invoking the hearsay rule⁷ to preclude his counsel from questioning Detective Cabrera about the substance of Deen's confession to show its "effect on the listener." The effect, he argues, was that neither Cabrera nor any other officer involved in the investigation did any additional digging to determine whether Deen's confession was truthful. According to Elysee, this shows that the police failed to act as reasonably diligent officers under the circumstances because their minds were made up that Elysee was the culprit.

Elysee's argument is based on two largely unexamined assumptions that are not clearly supported by the record. First, that the District Court actually precluded Elysee from eliciting the testimony to show its "effect on the listener." And second, that if the District Court did so, it was on hearsay grounds. In subpart A, we provide the context for Elysee's argument and explain why these assumptions are, at the very least, highly uncertain. In doing so, we conduct a painstaking examination of the trial transcript and provide intermittent commentary to explain our interpretation of what unfolds.

In subpart B, we address and ultimately reject Elysee's argument that the testimony was admissible for its effect on Cabrera and the other Task Force officers.

A.

The dispute over...