United States v. Ivey
| Decision Date | 14 February 2023 |
| Docket Number | 18-4296,18-4297 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DEMARCUS DONTE IVEY, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DEMARCUS DONTE IVEY, a/k/a Marcus Donte Ivey, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
James Patrick McLoughlin, Jr., MOORE & VAN ALLEN PLLC Charlotte, North Carolina, for Appellant.
Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.
ON BRIEF:
William T. Stetzer, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Before GREGORY, Chief Judge, and THACKER and RUSHING, Circuit Judges.
Demarcus Donte Ivey ("Appellant") challenges the convictions and sentence he received after a jury found him guilty of one count of Hobbs Act robbery, in violation of 18 U.S.C. § 1951, and one count of using a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. §§ 924(c) and 924(j)(1). Although we agree with Appellant that the district court erroneously admitted certain evidence during the trial, we ultimately conclude that those errors were harmless in light of the other, properly admitted evidence. We further hold that the district court correctly instructed the jury that Hobbs Act robbery constitutes a crime of violence as that term is defined in 18 U.S.C. § 924(c)(3)(A).
Accordingly, we affirm Appellant's convictions and sentence.
We recite the facts adduced at the jury trial in this case in the light most favorable to the United States (the "Government"), as the prevailing party. United States v. Walker, 32 F.4th 377, 381 (4th Cir. 2022).
Shortly before 2:00pm on Thursday, September 10, 2009, two men with guns entered Club Nikki's, a strip club in Charlotte, North Carolina.[1] One of the men was noticeably taller, wore a light gray hoodie, and carried a revolver. The other man was smaller, wore a darker gray hoodie, and carried a semi-automatic pistol. Both men wore baggy clothes, including pants with distinctive patches.
When the men entered the club, Michael Johnson ("Johnson"), the club's day shift manager and bartender, was at the bar with Brettney Simmons ("Simmons"), one of the club's dancers. When Simmons saw the men, she ran to another area of the club and ducked down under a table because she believed she would be safer there. The smaller man then came around the bar to stand next to Johnson and demanded that Johnson give him the money from the cash register. The area near the cash register was brighter than the rest of the club, so Johnson was able to see the man's face. After getting the money from the register, the smaller man held onto Johnson's shirt and led him toward the lobby area of the club, which was also brighter than the main part of the club. Once they reached the lobby, the smaller man instructed Johnson to open the door to the club's office. At this point, Johnson and the smaller man were face-to-face, standing just a couple feet apart. When Johnson told the smaller man he did not have the code to open the door to the office, the smaller man took Johnson back inside the main part of the club and laid him down on the floor. The larger man pointed a gun at Johnson and demanded his cell phone while the shorter man went around the club telling the customers and the dancers to lie on the floor.
Both men then walked around the club taking items like keys, wallets, cell phones, and jewelry from the dancers and patrons. They took a cell phone, a wallet, and a single key on a keyring from Randy Hamilton ("Hamilton"), a patron of the club. A short time later, the larger man led Johnson behind the bar again and demanded the box of $1 bills the club kept for customers to tip the dancers. He then told Johnson to lie on the floor behind the bar. Johnson could not see anything going on in the club after that. At one point, the club became quiet and Johnson tried to get up, but one of the men saw him and told him to lie back down. While Johnson was lying on the floor, he heard two gunshots.
Before the first shot was fired, Hamilton heard the smaller man tell Adrian Youngblood ("Youngblood"), another patron of the club, to get on the floor "and [Youngblood] was not responding," which is when Hamilton heard a gunshot. J.A. 1161.[2] Simmons, who had been lying on the floor near the club's entrance, stood up to see who had been shot. She saw the smaller man in the darker hoodie bring Hamilton and Youngblood to the front of the main part of the club, near the door to the lobby. Hamilton was sitting on the floor when the shorter man shot Youngblood again. The bullet from the second shot entered the area of Youngblood's left shoulder and neck and lodged somewhere near his abdomen. He was likely dead within a minute.
After the second shot, "[t]he girls started screaming in hysterics." J.A. 1248. The two intruders quickly left the club. Johnson then called the police and asked one of the dancers to call the club's owner. While Johnson was on the phone, another dancer came inside for the start of her shift and said the suspects were leaving in a green Jeep. Although he did not see the vehicle himself, Johnson provided this information to the dispatcher. Meanwhile, Hamilton went to the back of the club to look for a friend who had come to the club with him and saw "the tail end of a bluish green pickup backing up and pulling off." Id. at 1172. The Jeep, the pickup, and a white sedan[3] were all identified as potential suspect vehicles in the alert sent out to law enforcement.
At 1:56pm, only two minutes after the first 911 call came in, James Stansberry ("Officer Stansberry"), a patrol officer with the Charlotte-Mecklenburg Police Department ("CMPD"), arrived at Club Nikki's and could hear people screaming inside. When he entered the main part of the club from the lobby, he could not see well and tripped over Youngblood's body at the entrance. A woman who was in the club at the time of the incident gave Officer Stansberry a description of the suspects, and Officer Stansberry informed dispatch that the suspects were in "a dark blue Ford F-150 heading northbound on I-85." J.A. 180. Officer Stansberry never saw the vehicle himself.
William Secondi, Jr. ("Officer Secondi"), also a CMPD patrol officer, was sitting alone in his police car monitoring the radio traffic when he heard that a business had been robbed and someone had been shot. Dispatch described the suspects and the vehicles they could potentially be traveling in, along with the direction in which the suspects had gone. Officer Secondi set himself up to watch the traffic and was looking out for the suspects' vehicle when he saw "an older model Ford F-150" traveling at a high rate of speed and passing other traffic. J.A. 202. Officer Secondi saw the truck exit the interstate and started following it. He informed dispatch that the truck was occupied by two Black males and that the driver had a larger build and was wearing a white shirt.
After following the vehicle for a short time, Officer Secondi activated his lights and sirens, but the truck did not stop, so Officer Secondi continued pursuing it. Eventually, the truck crashed on a dead-end street, hitting a bush and "bouncing" around before hitting a vehicle parked in a residential driveway and coming to rest. J.A. 213. While the truck was "bouncing," Officer Secondi observed the passenger "hanging outside the vehicle . . . bouncing up and down inside the window frame." Id. When the truck hit the parked car, the passenger fell out of the truck's window, got up, and took off running toward the woods. Officer Secondi observed that the passenger was "a young [B]lack male with short hair, black shirt, about 5'8", 5'10"." Id. at 216. The driver, "a larger [B]lack male wearing a white shirt," exited the vehicle and ran toward Officer Secondi. Id. Officer Secondi got out of his cruiser and told the driver to get on the ground, but the driver "made a left between his truck and [Officer Secondi's] car" and kept running. Id. Officer Secondi pursued the driver on foot and was able to detain him. The driver's name was Kevin Bishop, Jr. ("Bishop"). When other patrol officers searched Bishop after his arrest, he had $23 in cash -- three $5 bills and eight $1 bills -- and three cell phones in his pockets. One of the cell phones belonged to Johnson, and another belonged to Hamilton.
The police found a revolver on the curb near the bush that the truck ran over. They did not find another gun anywhere in the area. In the grass near the driver's side of the truck, the police found a light gray hoodie. Officers also found a dark gray hoodie and a knit cap with Appellant's DNA on them on the floorboard of the truck. Appellant's DNA was also located on the interior of the door on the truck's passenger side. Inside the truck, the police found a total of $355 in cash: one $100 bill, one $50 bill, eight $20 bills, one $10 bill, four $5 bills, and 15 $1 bills. They also found Hamilton's wallet on the floorboard.
After detaining Bishop, Officer Secondi communicated over the radio where the passenger, whom Officer Secondi described as a "Black male, black shirt, short hair or crew cut, about 5'8["], 5'10"," J.A. 219, was headed. Daniel Cunius ("Detective Cunius"), a CMPD burglary detective who was initially on his way to Club Nikki's but "detoured" when he discovered that there was an ongoing pursuit for the suspects, heard...
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