United States v. Hardy

• Decision Date: 09 June 2021
• Docket Number: No. 19-4804,19-4804
• Citation: 999 F.3d 250
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Willie M. HARDY, Jr., Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

999 F.3d 250

UNITED STATES of America, Plaintiff - Appellee,

v.Willie M. HARDY, Jr., Defendant - Appellant.

No. 19-4804

United States Court of Appeals, Fourth Circuit.

Submitted: January 29, 2021

Decided: June 9, 2021

Alan H. Yamamoto, Alexandria, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, Alexandria, Virginia, Megan M. Cowles, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee.

Before WILKINSON, RICHARDSON, and QUATTLEBAUM, Circuit Judges.

Affirmed by published opinion. Judge Richardson wrote the opinion, in which Judge Wilkinson and Judge Quattlebaum joined.

RICHARDSON, Circuit Judge:

Willie Hardy confessed to drug and firearm offenses after waiving his Miranda rights. Based on his confession and other evidence, he was indicted. Hardy did not seek to suppress his confession and did not object when video clips of it were played during the trial. And the jury convicted him. Now, for the first time, Hardy challenges the district court's failure to specifically instruct the jury that it should "give such weight to the confession as the jury feels it deserves under all the circumstances" as required by statute. 18 U.S.C. § 3501(a). Hardy also argues that there was insufficient evidence that he possessed a firearm for two of the counts. Finding no prejudice from the failure to instruct, in part because there was overwhelming evidence for each charge, we affirm Hardy's conviction and sentence.

I. Background

A. Search, interviews, and Hardy's jail calls

After obtaining a search warrant, Newport News officers searched a residence located on Marshall Avenue. The two-story apartment had a living room and kitchen downstairs and two bedrooms, a bathroom, and a closet upstairs. When the officers arrived, Hardy was in the apartment with eight others.

Hardy was advised of his Miranda rights and agreed to speak. In a video-recorded interview, Hardy admitted to selling marijuana: He was a "two ounce" man, meaning he bought two ounces of marijuana at a time, broke it down into "dimes" or $10 bags, and sold it. GX 11-3.¹ At first, he denied dealing in heroin but later admitted to trying to serve as a middleman for heroin five weeks earlier. GX 11-4, 11-5. He also told the detectives that they would find a black bag with seven to eight ounces of marijuana in the residence.

As Hardy predicted, the search turned up a black bag with 7.5 ounces of marijuana in an open, vacuum-sealed bag in the living room. And other incriminating evidence was found in the bag, including a digital scale, plastic baggies, and almost five grams of heroin. A magazine with two .35 caliber cartridges was found near the bag. A sawed-off but defective Remington .35 caliber rifle was across the room in the living-room closet inside a gray sweatshirt. In the kitchen, officers found Hardy's phone beside the kitchen sink. Under the sink, the officers found a .40 caliber Glock with a loaded magazine. And above the refrigerator, on the other side of the kitchen, was a folder with Hardy's social security card, conditional employment offer, DMV notification, and mail. Upstairs, other items were recovered, including drug paraphernalia, other guns, ammunition, and documents reflecting who lived there.

The interview continued after Hardy was taken to the police station. While there, he admitted that about a week earlier someone named Chico gave Hardy the Remington rifle after Hardy's son had been robbed. Hardy also explained that eight months earlier someone named "Q" left the Glock in his son's car that Hardy had been driving. J.A. 543–44; GX 12-1.

Hardy explained that he had kept the gun, believed it was a .40 caliber, and had never carried or shot it. Hardy also unlocked his phone for the officers to search. But when given a consent form to formalize his consent to search the phone, he indicated that any consent given at that moment would have been procured "under duress." J.A. 434–35.

While in custody, the jail recorded several of his phone calls. During one, Hardy told his son that "Little Kenny" should take the gun charge as he was "not a convicted felon." GX 18-1. Hardy instructed his son to make sure Little Kenny wrote an affidavit explaining that the "junk was his though[,] [c]ause he ain't no convicted felon." GX 19-1. When Hardy's son proposed claiming the "junk" was his, Hardy agreed that he "could if [he] want[ed] to," before concluding that the plan would not work since his son had not been at the residence. GX 20-1.

B. Proceedings below

Hardy was charged with five counts: (1) possession with intent to distribute heroin, 21 U.S.C. § 841 ; (2) possession with intent to distribute marijuana, 21 U.S.C. § 841 ; (3) possession of a firearm in furtherance of a drug-trafficking crime, 18 U.S.C. §§ 924(c) ; (4) possession of a firearm by a felon, 18 U.S.C. § 922(g)(1) ; and (5) possession of an unregistered short-barrel rifle, 26 U.S.C. §§ 5861(d), 5845(a)(4).

The jury found the defendant guilty of Counts 2, 3, and 4 and not guilty of Counts 1 and 5. As reflected on the verdict form, the guilty verdict on Count 3 rested on Hardy's possession of the Glock, not the Remington. Hardy was sentenced to 300 months imprisonment. He timely appealed, and we have jurisdiction. 28 U.S.C. § 1291.

II. Discussion

Hardy claims that the district court plainly erred in failing to provide the instruction required by 18 U.S.C. § 3501(a). Section 3501(a) commands that the district court "shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances" when it admits a confession into evidence.² Neither party requested this instruction, and the district court did not give it.

We review the failure to give the § 3501(a) instruction only for plain error because Hardy did not raise this claim in the district court. United States v. McMiller , 954 F.3d 670, 674 (4th Cir. 2020). A right "may be forfeited in criminal ... cases by the failure to make timely assertion of the right" before the district court. Yakus v. United States , 321 U.S. 414, 444, 64 S.Ct. 660, 88 L.Ed. 834 (1944). When a defendant fails to raise an argument in the district court, we may "correct only ‘particularly egregious errors,’ " United States v. Young , 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (quoting United States v. Frady , 456 U.S. 152, 163, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) ), and only "[i]n exceptional circumstances," United States v. Atkinson , 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (1936).

To identify the particularly egregious errors and exceptional circumstances that warrant correcting forfeited errors, "a defendant must show that: (1) an error occurred; (2) the error was plain; and (3) the error affected his substantial rights." United States v. Lockhart , 947 F.3d 187, 191 (4th Cir. 2020) (en banc) (citing United States v. Olano , 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ). If those three criteria are satisfied, we may exercise our discretion to correct the error "only if [it] seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. (quoting United States v. Massenburg , 564 F.3d 337, 343 (4th Cir. 2009) ); see Fed. R. Crim. P. 52(b).

The parties disagree about whether failing to give the exact instruction required by § 3501(a) constitutes an error that is plain in all circumstances. Hardy argues that United States v. Sauls , 520 F.2d 568 (4th Cir. 1975), dictates that the error is plain for steps one and two of the plain-error analysis. In Sauls , we explained that " ‘whether requested or not,’ the trial court should instruct the jury specifically ‘upon the law governing the use of a confession’ and a failure to do so is clear error," even when general credibility and weight-of-the-evidence instructions are given. Id. at 569–70 (quoting United States v. Inman , 352 F.2d 954, 956 (4th Cir. 1965) ). We went on, however, to find that error non-prejudicial. Id. The government argues that Sauls ’s holding—that the failure to give the § 3501(a) instruction is clear error—has been eroded by subsequent Supreme Court precedent. But we need not decide that here, as even if the district court committed an error that was plain, that error did not affect Hardy's substantial rights. See United States v. Strickland , 245 F.3d 368, 379 (4th Cir. 2001).

A plain error normally affects a defendant's substantial rights if the error was prejudicial, meaning that it "affected the outcome of the district court proceedings." Olano , 507 U.S. at 734, 113 S.Ct. 1770. Determining whether an error was prejudicial requires "a specific analysis of the district court record—a so-called ‘harmless error’ inquiry," id. —with the burden of persuasion placed on the defendant to " ‘show a reasonable probability that, but for the error,’ the outcome of the proceeding would have been different," Molina-Martinez v. United States , ––– U.S. ––––, 136 S. Ct. 1338, 1343, 194 L.Ed.2d 444 (2016) (quoting United States v. Dominguez Benitez , 542 U.S. 74, 76, 82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) ). Hardy fails to make that showing.

Despite the district court's failure to give the § 3501(a) instruction, any prejudice Hardy suffered is minimized: (1) by the instructions the district court did give, and (2) because Hardy did not meaningfully challenge the voluntariness or veracity of his confession. First, the district court gave general weight-of-the-evidence and witness-credibility instructions. The district court instructed the jury that they should "use [their] good sense in considering and evaluating the evidence," "weigh all of the evidence," and act as the "sole judges of the evidence received in this case" and "of the credibility of each of the witnesses and the weight their testimony deserves." J.A. 825, 828, 830, 832. These instructions informed the jury of their responsibility to weigh all the evidence, including Hardy's...