United States v. Hill

• Decision Date: 24 May 2022
• Docket Number: 19-20251
• Citation: 35 F.4th 366
• Parties: UNITED STATES of America, Plaintiff—Appellee, v. Marc Anthony HILL; Bennie Charles Phillips, Jr.; Nelson Alexander Polk; John Edward Scott, Defendants—Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

35 F.4th 366

UNITED STATES of America, Plaintiff—Appellee,

v.Marc Anthony HILL; Bennie Charles Phillips, Jr.; Nelson Alexander Polk; John Edward Scott, Defendants—Appellants.

No. 19-20251

United States Court of Appeals, Fifth Circuit.

FILED May 24, 2022

Katherine Lisa Haden, Carmen Castillo Mitchell, Assistant U.S. Attorneys, U.S. Attorney's Office, Houston, TX, for Plaintiff - Appellee.

Ralph R. Martinez, Martinez & Martinez, Houston, TX, for Defendant - Appellant Marc Anthony Hill.

Susan J. Clouthier, Clouthier Law, P.L.L.C., The Woodlands, TX, for Defendant - Appellant Bennie Charles Phillips, Jr.

Brittany Carroll Lacayo, Lacayo Law Firm, P.L.L.C., Houston, TX, for Defendant - Appellant Nelson Alexander Polk.

Kenneth W. McGuire, Esq., McGuire Law Firm, Houston, TX, for Defendant - Appellant John Edward Scott.

Before Wiener, Dennis, and Duncan, Circuit Judges.

James L. Dennis, Circuit Judge:

Marc Hill, Bennie Charles Phillips, Jr., Nelson Polk, and John Scott (collectively "Defendants"), in concert with Trayvees Duncan-Bush,¹ became involved in an armored car robbery at a bank automated teller machine (ATM) scheme masterminded by Redrick Batiste.² The scheme involved staking out ATMs to identify when armored car drivers would replenish the cash inside and then robbing the armored car at the time of delivery by shooting and killing the driver. Batiste successfully executed this murder-robbery scheme at a Wells Fargo bank ATM in Houston, Texas in 2016 with the assistance of Hill and Polk (the "Wells Fargo murder-robbery"), resulting in the death of an armored car driver. Batiste then planned a second murder-robbery at an Amegy Bank ATM in Houston (the "attempted Amegy Bank ATM murder-robbery") with the help of all four Defendants. Acting on a tip, and after months of surveillance of Batiste, following the Wells Fargo ATM murder-robbery, law enforcement converged on the Amegy Bank ATM the day of the planned Amegy Bank ATM murder-robbery to turn the plot into a takedown. Batiste opened fire during the ambush but was shot and killed by the officers' return fire. Law enforcement eventually arrested Hill, Polk, Scott, and Duncan-Bush at the scene and later arrested Phillips, who was not present for the planned Amegy Bank ATM murder-robbery. As the result of the Wells Fargo ATM robbery and the attempted robbery of the Amegy ATM, the surviving Defendants were charged and prosecuted for aiding and abetting robbery, attempted robbery, and aiding and abetting the use of a firearm during a crime of violence causing death of a person. In one consolidated case, after a two-week jury trial, the Defendants were each convicted on all counts. On appeal, the Defendants each raise multiple issues challenging their convictions and sentences. For the following reasons, we AFFIRM the Defendants' convictions and sentences as to each claim.

I. Jurisdiction

This is a direct appeal from a final decision of the United States District Court for the Southern District of Texas, imposing criminal convictions and sentences, over which this court has jurisdiction under 28 U.S.C. § 1291. Defendants timely filed their notices of appeal in compliance with Fed. R. App. P. 4(b).

II. Background

A. Wells Fargo Murder-Robbery and Subsequent Investigation

On August 29, 2016, Batiste, assisted by Hill and Polk, shot and killed an armored car driver as he was delivering approximately $120,000 to a Wells Fargo ATM. The following month, the Houston Police Department (HPD) received an anonymous tip that Batiste had been involved in the Wells Fargo murder-robbery. HPD and the FBI's Violent Crime Task Force (the "Task Force") investigated the tip. Special Agent Jeffrey Coughlin headed the Task Force's investigation. Batiste's cell phone records and cell-site locational data showed that Batiste's phone regularly contacted the numbers associated with Hill and Polk on the day of the incident. It also revealed that all three phones were in the bank's area on the day of the Wells-Fargo murder-robbery and in the days leading up to the murder-robbery.

B. Attempted Amegy Bank Murder-Robbery

During September and October 2016, the Task Force surveilled Batiste and observed his practice of traveling to different ATMs and banks in Houston. In October, Duncan-Bush, a jailhouse acquaintance of Phillips, joined the scheme when Phillips called Duncan-Bush to ask if he "want[ed] to make some money." By November, it became evident to the Task Force that Batiste was targeting an Amegy Bank ATM. The Task Force had obtained court orders for the call records and cell-tower locations of Batiste and Phillips's phones and, a wiretap of Batiste's phone. In late November, Phillips and Duncan-Bush met with Batiste and agreed that Duncan-Bush would "grab the black bag," containing the cash from the armored truck, and that Phillips and Duncan-Bush would split half of the cash, while Batiste would take the other half.³

On November 30, 2016, Hill and Batiste observed the armored car's delivery to the Amegy Bank ATM. The Task Force's recordings revealed that Batiste called Phillips to confirm that the armored car was coming that day. Later, Batiste told Phillips that he thought about being in "savage mode" and "tak[ing] the whole truck down[.]" The same day, Batiste sent news stories about other armored car robberies to Phillips and warned him, "[n]o talking, bragging, posting, [or] flashing[.]" Scott also joined the conspiracy that day after Batiste called and asked him if he wanted to be "in rotation." On December 2, Batiste called Phillips and mentioned using an AR-15 semi-automatic rifle. He told Phillips that he had had the gun's ballistics modified in case law enforcement recovered ballistic evidence from the shooting. The next day, Batiste and Hill discussed holding a "scrimmage," or test run, of the robbery at the Amegy Bank ATM on December 5. Phillips brought Duncan-Bush to meet Polk for the scrimmage and picked him up afterward. Batiste later called Phillips to ask whether Duncan-Bush was still willing to participate, and Phillips answered that it was "still a go." Phone records from December 6 and 7 showed all of the Defendants in regular communication on the days before and of the planned Amegy Bank ATM murder-robbery.

The investigation culminated in a government takedown of the would-be robbers on December 7, the day of the planned Amegy Bank murder-robbery. Duncan-Bush, Polk, Hill, and Scott attempted to flee from officers but were arrested. Batiste opened fire during the takedown, but the officers' return fire hit and killed him.

Phillips, who was not at the scene of the attempted robbery, was arrested that afternoon.

C. Consolidated Prosecution of Both Cases

In March 2018, a grand jury returned a four-count indictment against Hill, Polk, Scott, Phillips, and Duncan-Bush. Hill and Polk were charged with aiding and abetting Hobbs Act robbery in violation of 18 U.S.C. §§ 1951(a) and 1952 ("Count One"), and aiding and abetting the use of a firearm during a crime of violence causing the death of a person in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii), (c)(3) and (j)(1) ("Count Two"), in connection with the Wells Fargo murder-robbery during which they successfully murdered and robbed an armored car driver. Hill, Polk, Scott, Phillips, and Duncan-Bush were each charged with attempted Hobbs Act robbery in violation of 18 U.S.C. § 1951(a) ("Count Three"), and aiding and abetting the discharge of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and (c)(3) ("Count Four"), in connection with the Amegy Bank ATM attempted murder-robbery, which was thwarted by police and resulted in the death of coconspirator Batiste. Duncan-Bush pleaded guilty under a plea agreement to Counts Three and Four. The first attempt at trial ended abruptly after voir dire when Hill fired his counsel and requested a continuance to obtain new counsel. After a one-week trial, the jury in the second consolidated case returned guilty verdicts on all counts against each Defendant. Hill and Polk were each sentenced to two concurrent 240-month terms on Counts One and Three, followed by two consecutive life terms each on Counts Two and Four. Scott and Phillips were sentenced to 240 months on Count Three and a consecutive life term on Count Four. Defendants now appeal their convictions and sentences to this court.

III. Discussion

A. Shackling

At trial, the court informed the parties that the U.S. Marshals Office (the "Marshals") had evaluated the trial as having the highest level of risk and recommended that the Defendants wear leg shackles, which would be hidden from the jury's view by a table skirt. Alternatively, the Marshals recommended using a banded electronic restraint device under each Defendant's clothing. The Marshals based their assessment on a combination of factors, including the fact that the Defendants were charged with "premeditated, extremely violent offenses," that the Defendants faced significant time in custody if convicted, the Defendants' criminal histories, and the joint nature of the trial.

When trial resumed after the continuance, each Defendant wore leg shackles and an electronic restraint device. Judge Werlein, who presided over the case before its transfer to Judge Hittner, had granted the Defendants' motion not to use leg restraints notwithstanding the Marshals' report, based on the "representation of defense counsel that they believed that the risks are not as great as the Marshal[s]" had determined. Instead, Judge Werlein had ruled that Defendants would wear electronic restraints under their clothing. However, after the continuance and transfer to Judge Hittner, Judge Hittner ordered that the Defendants wear leg shackles covered by a table skirt as the Marshals had recommended. Judge Hittner did not explain the reason for this change on the record.

Hill objected to the shackling before the trial reconvened, but the court overruled these objections, given the fact that that...