United States v. Hammond, 19-2357

Decision Date26 April 2021
Docket NumberNo. 19-2357,19-2357
Citation996 F.3d 374
Parties UNITED STATES of America, Plaintiff-Appellee, v. Rex HAMMOND, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

David E. Hollar, Attorney, Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.

David S. Rosenbloom, Attorney, McDermott, Will & Emery LLP, Chicago IL, Ethan H. Townsend, Attorney, McDermott Will & Emery, Wilmington DE, for Defendant-Appellant.

Before Sykes, Chief Judge, and Kanne and St. Eve, Circuit Judges.

St. Eve, Circuit Judge.

Over the course of a three-week crime spree in October 2017, Rex Hammond robbed, or attempted to rob, seven stores at gunpoint in Indiana and Michigan. Five of the seven incidents took place in northern Indiana, where the government charged Hammond with five counts of Hobbs Act robbery and several attendant weapons charges. The charges included one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) and two counts of brandishing a weapon during a crime of violence in violation of 18 U.S.C. § 924(c). A jury convicted Hammond of all charges, and the district court sentenced him to forty-seven years in prison.

Hammond now appeals his conviction and sentence. First, he argues that the district court should have suppressed certain cell site location information that law enforcement collected to locate him during his robbery spree and to confirm his location on the days of the robberies, based on Carpenter v. United States , ––– U.S. ––––, 138 S. Ct. 2206, 201 L.Ed.2d 507 (2018). He also argues that the district court erred in instructing the jury regarding the felon-in-possession charge under Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019). Finally, he claims that Hobbs Act robbery is not a crime of violence under 18 U.S.C. § 924(c) or under the Sentencing Guidelines, so his § 924(c) conviction must be overturned, and his sentence vacated. We reject each of these arguments and affirm Hammond's conviction and sentence in all respects.

I. Background

In October 2017, a series of armed robberies plagued northern Indiana and southern Michigan. Each robbery involved a white man wearing a long sleeved, gray t-shirt; a winter hat; a black face mask; clear, plastic gloves; and bright blue tennis shoes. During each incident, the perpetrator walked straight up to the register and demanded that the cashier withdraw cash from the register and put it into a bag that the man provided. Based on the similarities among the robberies, law enforcement suspected that the same perpetrator had committed them. Robberies took place on Friday, October 6 in Logansport, Indiana; Saturday, October 7 in Peru, Indiana; and Monday, October 9 in Auburn, Indiana. On October 10, the perpetrator attempted two unsuccessful robberies in southern Michigan—one in Portage and one in Kalamazoo.

During the first attempted robbery on October 10, the cashier fled the scene, leaving the suspect to attempt opening the cash register himself. He failed and fled. The perpetrator then attempted a second robbery, this time at a liquor store in the adjoining town of Kalamazoo. This endeavor also ended poorly for the robber. Rather than placing the cash into the robber's bag as directed, the store clerk placed the cash from the register on the counter. This forced the robber to attempt to stuff the cash into the bag and gave the store clerk an opportunity to grab the gun, a desert-sand colored Hi-Point, and swipe it behind the counter. The robber fled without the weapon.

Leaving his weapon behind had two important consequences: First, there was a two-week hiatus between the Kalamazoo attempted robbery and the resumption of the robberies on October 24. In that time, the robber secured a new weapon—a dark colored, .22 caliber revolver. Witnesses prior to the Kalamazoo robbery described the robber's weapon as a "light brown gun." After October 10, witnesses described the robber's weapon as a "dark revolver." The robber committed two additional robberies using the dark revolver, on October 25 in Decatur, Indiana and October 27 in Logansport, Indiana. Despite the change in weapon, other similarities with the earlier robberies indicated that the same suspect likely committed the late October robberies.

Second, in addition to forcing the robber to find a new weapon, the Kalamazoo store clerk's quick thinking also gave law enforcement their first substantial clue as to the identity of the robber. By this time, federal and state law enforcement agencies had begun cooperating with each other to investigate the string of incidents. So, on Wednesday, October 25, officers from several jurisdictions met to review surveillance of the robberies, including Agent Andrew Badowski of the Bureau of Alcohol, Tobacco and Firearms ("ATF"); Detective Jacob Quick of the Indiana State Police; Detective Tyler Preston of the Logansport, Indiana police; Detective Stacey Sexton of the Auburn, Indiana police; and Detective Cory Ghiringhelli of the Kalamazoo, Michigan police.

Upon recovery of the desert-sand colored Hi-Point, ATF Agent Badowski traced the weapon to Todd Forsythe, who reported that he had sold the weapon to "Rex." Forsythe also provided Badowski with the cell phone number that "Rex" used to arrange the gun sale. On Saturday, October 28, Badowski conveyed this information to Detective Quick, who traced the phone number to the defendant, Rex Hammond. Using Indiana DMV records, the officers also confirmed that Hammond's vehicle, a light-colored Chrysler Concorde, matched descriptions of the vehicle used during the robberies and caught on surveillance footage near the scenes of the crimes. Officers also learned that Hammond had several prior convictions in Indiana, including armed robbery.

The parties dispute exactly when officers learned all of this information: Hammond asserts that officers knew that he was the prime suspect by Saturday, October 28 and that officers could have sought a warrant at the time. In contrast, the government emphasizes that while officers suspected Hammond had committed the robberies, they spent the weekend confirming that the evidence linked Hammond to the robberies, including re-interviewing Forsythe on Sunday, October 29. Detective Ghiringhelli testified that "the information identifying our suspect came over the weekend. I believe it came the evening of the 28th, which was a Saturday. It either came the 28th or 29th. It was that weekend." Ghiringhelli also testified that he believed that he had probable cause to arrest Hammond by Monday, October 30.

On that Monday, Ghiringhelli submitted an "exigency" request under 18 U.S.C. § 2702(c)(4) to AT&T, requesting cell site location information ("CSLI") to geolocate Hammond using the cell phone number that Forsythe had provided. In addition to real-time "pings" to nearby cell towers, Ghiringhelli requested Hammond's historical CSLI dating back to the beginning of the robbery spree on October 7. AT&T complied with Ghiringhelli's request. The historical CSLI records confirmed that Hammond's phone was near Portage and Kalamazoo, Michigan on October 10, and AT&T began providing real-time CSLI, consisting of "pings" to Hammond's location roughly every fifteen minutes, commencing at approximately 6 p.m. on October 30.

Using this real-time CSLI, Ghiringhelli directed Detectives Quick and Sexton to Elkhart, Indiana around 7:30 or 8 p.m. on Monday, October 30. The officers could not locate Hammond in Elkhart. Around 11:30 p.m., Hammond's CSLI pinged near the Indiana toll road in South Bend. Following that ping, Quick and Sexton recognized Hammond's light blue Chrysler Concorde in a Quality Inn parking lot in South Bend. Quick ran the license plate and confirmed it belonged to Hammond. The detectives called for backup and began following Hammond when he exited the parking lot after midnight. As Hammond drove south from South Bend toward Marshall County, Detective Quick called the county's sheriff's department, informed the department that he was following an armed robbery suspect, and requested a traffic stop. After apparently realizing that officers were following him, Hammond lost the officers by engaging in evasive driving maneuvers. While waiting on updated CSLI information from Ghiringhelli, Quick and Sexton met with Marshall County Deputy Kerry Brouyette. During this meeting, Brouyette recognized Hammond drive past them, so the officers resumed their pursuit. Brouyette ultimately stopped Hammond's car around 1:23 a.m. for speeding and failing to signal. At the time, Hammond wore a gray t-shirt, a winter hat, and bright blue tennis shoes, matching the description provided by the robbery victims.

After Detective Quick confirmed with Logansport1 Detective Preston that they should arrest Hammond immediately, the officers ordered Hammond and his passenger, Alexandra Latendresse, out of the vehicle. They arrested Hammond and read him his Miranda rights. Hammond told officers that everything in the car belonged to him, and Latendresse told officers that Hammond had told her that they were going to "get[ ] some money." Detective Quick later sought and obtained a search warrant for Hammond's car, which contained a black .22 caliber revolver, 44 rounds of .22 caliber ammunition, methamphetamine, a white plastic bag, rubber gloves, a cell phone, and a Garmin GPS Unit.

A grand jury indicted Hammond on January 10, 2018 for five counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951 ; two counts of brandishing a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c) ; and one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g).

Also in January 2018, the government filed an ex parte application for a court order for Hammond's historical CSLI. Although the application acknowledged that law enforcement had already obtained "partial phone records" from Hammond's phone, the...

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