United States v. Jordan

• Decision Date: 13 December 2019
• Docket Number: No. 18-20564,18-20564
• Citation: 945 F.3d 245
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Walter Freeman JORDAN, III; Johnathon Nico Wise, Defendants–Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

945 F.3d 245

UNITED STATES of America, Plaintiff–Appellee,

v.Walter Freeman JORDAN, III; Johnathon Nico Wise, Defendants–Appellants.

No. 18-20564

United States Court of Appeals, Fifth Circuit.

FILED December 13, 2019

Seth Christian Gagliardi, Carmen Castillo Mitchell, Assistant U.S. Attorneys, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff - Appellee.

Yolanda Evette Jarmon, Esq., Law Office of Yolanda Jarmon, Houston, TX, Quentin Tate Williams, Hilder & Associates, P.C., Houston, TX, for Defendants - Appellants.

Before ELROD, WILLETT, and OLDHAM, Circuit Judges.

DON R. WILLETT, Circuit Judge:

Walter Freeman Jordan, III and Johnathon Nico Wise were found guilty, along with several co-defendants, of aiding and abetting aggravated credit union robbery in violation of 18 U.S.C. § 2113(a), (d)(2). Jordan was additionally found guilty of aiding and abetting the brandishing of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii), (c)(2). They both appeal their convictions and sentences.

Jordan argues that (1) there was insufficient evidence to sustain his conviction; (2) the district court erred in permitting testimony that identified Jordan and Wise as brothers; and (3) the district court erred in permitting co-defendants’ testimony regarding their own guilty pleas. Wise similarly argues that (4) there was insufficient evidence to support his conviction; and (5) the district court erred in permitting testimony that identified Jordan and Wise as brothers. He additionally argues that (6) the district court plainly erred in failing to give a Rosemond instruction; (7) the district court clearly erred in applying a sentencing enhancement for the use of a firearm; and (8) the district court clearly erred in denying a Guidelines reduction for Wise’s allegedly minimal role in the robbery.

We AFFIRM the convictions and sentences.

I. BACKGROUND

Because Jordan and Wise both challenge the sufficiency of the evidence, it’s necessary for us to dive into the record to understand what evidence was before the jury. We read the facts in the light most favorable to the jury’s verdict.¹

A. The Robbery

On July 24, 2017, the Houston Police Department was investigating Walter Jordan and monitoring a phone number—ending in 6601—attributed to him. By following cell tower signals,² officers observed the phone move from the Third Ward of Houston to the Cinco Ranch area. At the same time, surveilling officers followed Jordan as he drove a maroon Volkswagen Jetta from the Third Ward of Houston to the Cinco Ranch area. Both the phone and Jordan then traveled back to the Third Ward, at which point officers saw Jordan exit the Jetta.

The next morning, officers observed the phone move from its usual nighttime location earlier than usual, prompting them to begin surveillance on Greenmont Street. There, they identified a silver Chevrolet Malibu, black Toyota Tundra, silver Nissan Rogue, and the maroon Jetta that Jordan had been driving the day before. Jordan, Wise, and others moved between the vehicles over the course of a couple of hours, and eventually, all four cars filed out in formation. As the four vehicles pulled off of Greenmont, heading west, officers followed in unmarked vehicles.

The vehicles drove to the Cinco Ranch area—the same area that Jordan had traveled to the day before. The four cars under surveillance then "scrambled." The fleet of about twenty officers initially followed the cars moving in various directions but then set up posts at different locations around the area. From their respective posts, the officers were able to continue observing the vehicles’ movements. The 6601 phone was in the Cinco Ranch area at this time as well, with the signal bouncing between two nearby towers.

Officers noticed that the four cars seemed to be focused on First Community Credit Union. Each car spent about fifty minutes either parked—facing the credit union—or circling various streets that ultimately led back to the credit union. Eventually, the Tundra pulled into a parking spot in front of the credit union, and three men exited the truck and ran inside. A fourth man followed shortly after. Because the men’s faces and hands were covered, officers were unable to physically identify them.

Once inside the credit union, two of the men jumped over the teller counter, demanded that the tellers get on the ground, and asked where the money was kept. One teller was then instructed to get back up and unlock her drawer; the robbers proceeded to go through the tellers’ drawers, ultimately collecting money from two, including "bait bills."³ The robbers then attempted to get into the vault, striking one bank employee when he failed to open it. When a teller informed them that she didn’t know the vault combination either, one of the robbers lifted his shirt, revealed the gun in his waistband, and instructed her to get back on the ground. Shortly after, another person came into the credit union and shouted, "The cops are down the street." The robbers jumped back over the teller counter and fled the credit union. On their way out, one of the robbers pointed a gun at a customer attempting to enter the credit union, prompting the customer to turn around and return to his car.

After the robbers returned to the Tundra and began driving away, the Rogue, Jetta, and Malibu—which had been parked in various spots near the credit union—followed. Officers in marked vehicles followed the Tundra, while officers in unmarked vehicles stopped the others. Deandre Santee and Wise occupied the Rogue, Daryl Anderson occupied the Jetta, and Jaylen Loring occupied the Malibu. All four were detained.

Meanwhile, the officers’ pursuit of the Tundra and its four occupants continued. The cars flew down the highway at speeds around 130 miles per hour until the Tundra exited. After it was off the highway, the Tundra made numerous turns, flew through red lights, and drove into oncoming traffic, eventually hitting a dead end. With nowhere left to turn, the Tundra’s driver slammed on his breaks, and the passengers jumped out of the still-moving vehicle and began to flee on foot. One passenger—Raymond Pace—was not fast enough to get out of the Tundra’s way and was crushed between the front bumper and a fence; officers called for medical assistance and placed Pace under arrest. The three other passengers continued running toward an apartment complex at the fence line.

Officers learned that Jordan’s brother, Terrance,⁴ lived in the apartment complex and promptly obtained a search warrant for his unit. With resistance, officers were able to make their way into the apartment.⁵ Inside, they noticed still-wet hoodies in the washing machine that had the same markings as the ones worn by the robbers and a shoebox with a gun and pair of gloves that matched the gloves worn by the robbers. Outside of the unit, but still in the apartment complex, officers located a backpack on a small balcony between the second and third floors, which contained hoodies and gloves that matched the ones worn by the robbers and a pillowcase with cash, including the credit union’s bait bills. Back at the Tundra, officers catalogued, among other things, gloves and a pistol found underneath the front passenger seat. They also retrieved a phone off of Pace that matched the 6601 number affiliated with Jordan, and another three phones were retrieved from inside the Rogue, one of which matched another phone number affiliated with Jordan. Phone records later confirmed that these phones were engaged in multiple calls with one another throughout the robbery.

B. The Trial Testimony

Anderson and Loring, two of the individuals arrested in companion cars, testified against Jordan and Wise at trial. During direct examination, the prosecutor elicited testimony that both had pled guilty to aiding and abetting the robbery of the First Community Credit Union. They both also acknowledged that their goal in testifying was to reduce their sentences.

In his testimony, Anderson acknowledged his past convictions for giving a false name to a police officer, possessing a controlled substance, and displaying a false license plate. He then went on to explain his relationship with Jordan. Anderson told the jury that he had known Jordan most of his life and that, on the morning of the robbery, Jordan had enlisted his help in being a lookout during the robbery. At first, Anderson refused and left Greenmont Street with his "good friend," Santee. But then Jordan called him and begged for his help, promising that Anderson’s only role would just be as "some extra eyes." Anderson agreed to be a lookout, and Jordan filled him in on the details. Santee and Anderson then sat in Santee’s Rogue, and Santee asked what he was supposed to do. Anderson didn’t give Santee any specific instructions but told him just to follow. Minutes later, Wise, who had been in the Jetta, got into the Rogue with Santee. Anderson got into the Jetta. Jordan entered the driver’s seat of the Tundra. And the cars set off for the credit union. En route, those in the Tundra, Jetta, and Rogue engaged in a three-way call. The purpose of the call wasn’t to chat, but to keep one another informed if any cops came into view or trouble arose. The driver of the Malibu, a woman who Anderson didn’t know, joined the call as well; she let them know the credit union was all clear. Anderson testified that the Tundra then parked in front of the credit union, those in the Tundra went into the bank for ten to fifteen minutes, and then they came back out and fled. Anderson attempted to follow them, but was soon cut off by unmarked police vehicles and placed under arrest.

Loring testified that she met Jordan, also known as Wacko, on Instagram about a week before the robbery when he messaged her about the opportunity to make quick money. They met a couple of times over that week, and Jordan filled her in on his plan. Loring testified that Jordan was...