United States v. Hill

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Citation786 F.3d 1254
Docket NumberNo. 13–5074.,13–5074.
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Dejuan Leshae HILL, Defendant–Appellant.
Decision Date22 May 2015

Terry L. Weber, Tulsa, OK, for DefendantAppellant.

Danny C. Williams, Sr. (Joel-lyn A. McCormick with him on the brief), United States Attorney, Tulsa, OK, for PlaintiffAppellee.

Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges.

Opinion

PHILLIPS, Circuit Judge.

Dejuan Hill1 was indicted, tried, and convicted of both robbing Arvest Bank in Tulsa, Oklahoma in November 2011 and taking part in a larger conspiracy to rob banks, a credit union, and four pharmacies in the Tulsa area from 2009 to 2011. Before and during trial, Dejuan filed motions related to the four issues that he now raises on appeal: (1) a motion to dismiss Count One, arguing that a fatal variance existed because the Indictment against him charged a single global conspiracy but the evidence at trial instead proved multiple, smaller conspiracies; (2) a pretrial motion for misjoinder of defendants, contending that joining his charges to those of his co-defendants was improper and so prejudicial that a separate trial was required;2 (3) a motion in limine to exclude evidence of gang affiliation, arguing that the evidence was both irrelevant to his charges and unfairly prejudicial to him; and (4) a motion for judgment of acquittal at the close of the evidence, arguing that the government produced insufficient evidence to convict Dejuan of any of his three charges. The district court denied each of these motions.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. While we agree with Dejuan that there was a variance between the single conspiracy charged in the Indictment and the evidence of individual conspiracies presented at trial, we conclude that this variance was insufficiently prejudicial to affect Dejuan's substantial rights. In addition, we affirm on all other issues raised in this appeal.

I. Factual Background

Confronted with a series of robberies of banks and pharmacies in Tulsa, Oklahoma, Tulsa police—with the FBI's help—investigated. Law enforcement came to believe that the local Hoover Crips gang was connected to the robberies. The Tulsa Police Department has a multi-step process through which it certifies individuals as gang members and—based principally on his certification as a member of the Hoover Crips—police identified Dejuan as a person of interest in this string of robberies.

Based on their investigation, law enforcement officials eventually came to believe that several men associated with the Hoover Crips, including Dejuan, had conspired to commit a number of these robberies. A federal grand jury returned a ten-count indictment against this group of alleged co-conspirators, charging each with conspiring between August 2009 and November 2011 to commit six robberies in violation of 18 U.S.C. § 1951(a). The grand jury indicted Dejuan as a member of this broad conspiracy and also charged him with the November 2011 robbery of Arvest Bank and—as part of that robbery—with using a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii).

A. The Arvest Bank Robbery

The Arvest Bank robbery occurred on November 5, 2011. The government argued at trial that Dejuan and Vernon Hill robbed the bank and that Stanley Hill acted as the getaway driver.3 At around 8:30 a.m., two armed, masked men entered the bank. One carried a semiautomatic pistol and pointed it at customers while screaming profanities and ordering everyone onto the ground. Eyewitnesses said that the men were black males, based on the uncovered parts of their faces. Tellers complied with the robbers' demands to empty the cash drawers. Included in the cash that the tellers handed over to the robbers were marked bills and a GPS tracer. Police traced the GPS tracking device to Vernon Hill's home at 1107 E. Pine in Tulsa.

Tulsa Police Department Officer Donnie Johnson received a call about the bank robbery soon after 8:30 a.m. Based on the movement of the GPS tracer—but before the police determined that the GPS tracking device had stopped at 1107 E. Pine—Johnson drove his patrol car to the area by 1107 E. Pine. Police were told to be particularly vigilant regarding that house because they had Vernon pegged as a likely bank robber and they believed he resided there.4 Paying close attention, Johnson soon saw a man he later identified as Dejuan drive a black Nissan car5 from a one-way alley behind 1107 E. Pine and past him. As Dejuan passed by Johnson, the two men locked eyes for a few seconds.6

Police detained Vernon and Stanley Hill as they separately attempted to leave 1107 E. Pine around two hours after the robbery. After obtaining a search warrant, police officers and FBI agents entered the house and seized (1) the stolen money, which was $311.52 short of the $86,918.52 taken but still included the marked bills and GPS tracer, (2) one set of robber's clothes (black sweatshirt, black pants, and black ski mask), and (3) a Glock .45 caliber pistol.

The government initially prosecuted Vernon and Stanley Hill for the Arvest Bank robbery without including Dejuan. Following a court proceeding related to the prosecution of Vernon and Stanley, Officer Johnson noticed Dejuan outside the courtroom and recognized him as the person he had seen driving away in the black Nissan from the alley behind 1107 E. Pine. During a later court proceeding in that same prosecution, Officer Johnson identified Dejuan as the driver of the black Nissan. After Officer Johnson's in-court identification, Dejuan did not attend any further court proceedings in the case against Vernon and Stanley.

After evaluating all the evidence, the government expanded its charges to include Dejuan as a co-conspirator in the string of robberies and as the third robber in the Arvest Bank robbery. Before addressing the government's evidence at trial in detail, we briefly summarize it here: (1) Officer Johnson saw Dejuan driving away from 1107 E. Pine, his brother's house, minutes after the bank robbers would have arrived there; (2) Dejuan was driving a black Nissan four-door sedan, which was the same make, color, and style as a car that belonged to Whitney Landrum, his brother Stanley's girlfriend and the mother of Stanley's children; (3) cell phone records showed that three cell phones—one registered to Vernon (Vernon's phone), the other two to Whitney Landrum—had all been located near Whitney Landrum's house on the morning of the bank robbery; (4) cell phone records showed that Vernon's phone called one of Whitney Landrum's phones (Landrum 1) from near the bank very soon before the bank robbery (the second phone registered to Whitney Landrum (Landrum 2) showed no calls after being located near Whitney Landrum's house that morning, suggesting it had been turned off); (5) cell phone records showed that Vernon's phone and Landrum 1 were near 1107 E. Pine very soon after the bank robbery; (6) cell phone records showed that Landrum 1 left 1107 E. Pine and headed south at the about the same time that Officer Johnson saw Dejuan driving away in the black Nissan; (7) during the 30 minutes after Officer Johnson and Dejuan locked eyes as Dejuan drove away from the alley behind 1107 E. Pine, Landrum 1 called Vernon's phone twice, and received one call from Vernon's phone; (8) upon searching 1107 E. Pine, officers found one set of robber's clothing but not the second set; (9) officers found at 1107 E. Pine all but $311.52 of the stolen $86,918.52; and (10) the bank's video and the eyewitness testimony showed that the second bank robber (in addition to Vernon) was of a size and complexion similar to Dejuan but not similar to Stanley.

As briefly alluded to above, the government used the cell phone records to support its position that Dejuan and Stanley Hill had used the two phones registered to Landrum. Landrum 2, which had phone number (918) 946–1576, was active on the morning of November 5. It was located in the vicinity of 1107 E. Pine around 7 a.m. and then was located near Landrum's address—811 North Irvington—around 8 a.m. After that time Landrum 2 showed no activity until November 6, suggesting that it may have been turned off. The other two phones—Landrum 1, which had phone number (918) 313–3860, and Vernon's phone, which had phone number (918) 282–9204—were also located in the vicinity of Whitney Landrum's address at around 7:15 a.m. on November 5 and were next used while close to Arvest Bank at 8:30 a.m. Vernon's phone made a call to Landrum 1 around 8:30 a.m. in the vicinity of the bank. Around this same time, an eyewitness saw two men, whose descriptions matched those of the robbers, standing outside the bank, one speaking on a phone. After this, Landrum 1 showed no activity until around 9 a.m., when cell tower information showed it in the vicinity of 1107 E. Pine. As the cell-phone tower records showed, Landrum 1 began moving south after this and exchanged at least three calls with Vernon's phone in the next half hour. Landrum 1's movement corresponded with the period in which Officer Johnson saw Dejuan leave the area around 1107 E. Pine. The first call from Landrum 1 to Vernon's phone occurred at 9:04 a.m., which was around the same time that Officer Johnson and Dejuan made eye contact outside of 1107 E. Pine.

The government also tied Dejuan to the robbery with video from an Arvest Bank security camera and eyewitness descriptions of the robbers. Based on both the video and eyewitness observations, the Arvest Bank robbers were of similar height, with one having a light-brown complexion and the other a dark-brown complexion. Because Stanley was shorter and of a different complexion (medium-brown) than the bank robbers, the government argued that Stanley was the getaway driver.

B. The Larger Conspiracy

The evidence supporting Dejuan's connection to the larger conspiracy focused mostly on (1) the Tulsa Police Department's “certification” of Dejuan as a...

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