United States v. Mobley

• Decision Date: 15 October 2015
• Docket Number: No. 13–10561.,13–10561.
• Citation: 803 F.3d 1105
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Khusar MOBLEY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

803 F.3d 1105

UNITED STATES of America, Plaintiff–Appellee

v.Khusar MOBLEY, Defendant–Appellant.

No. 13–10561.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 11, 2015.

Filed Oct. 15, 2015.

Mary E. Pougiales (argued), Pougiales Law Offices, Novato, CA, for Defendant–Appellant.

Owen P. Martikan (argued), Assistant United States Attorney; Melinda Haag, United States Attorney; Barbara J. Valliere, Chief, Appellate Division, United States Attorney's Office, San Francisco, CA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Northern District of California, Yvonne Gonzalez Rogers, District Judge, Presiding. D.C. No. 4:12–cr–00235–YGR–1.

Before: CONSUELO M. CALLAHAN, MILAN D. SMITH, JR., and PAUL J. WATFORD, Circuit Judges.

OPINION

WATFORD, Circuit Judge:

The government charged three cousins—appellant Khusar Mobley, Otis Mobley, and D'Marce Hutcherson—with various crimes arising out of their attempt to rob a federal officer. The officer in question, Special Agent Tehran Palmer of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), was posing as a buyer of illegal firearms. When Agent Palmer showed up to purchase the grenade launcher the defendants had agreed to sell, the defendants attempted to rob him of the buy money at gunpoint. Otis (to avoid confusion, we will refer to him by his first name) and Hutcherson pleaded guilty during trial, leaving Mobley to face the jury alone. The jury convicted Mobley of assault on a federal officer, 18 U.S.C. § 111(b) ; robbery of mail, money, or other property belonging to the United States, § 2114(a) ; conspiring to commit the above offenses, § 371 ; and brandishing a firearm in furtherance of a crime of violence, § 924(c)(1)(A).

Mobley challenges the sufficiency of the evidence introduced to support the convictions, as well as the legality of the 147–month sentence imposed by the district court. We address Mobley's sufficiency challenges here. We reject his sentencing arguments in an unpublished memorandum disposition filed together with this opinion.

I

Mobley's older cousin, Otis, arranged to sell a grenade launcher for $1,000 to an acquaintance named Aaron McGrew. Otis and McGrew agreed to meet mid-afternoon in the parking lot of a Chevy's restaurant. Otis drove to the meeting site accompanied by Mobley and Hutcherson. None of them knew that McGrew was working as an informant, so they did not suspect that one of the men accompanying McGrew—Agent Palmer—was actually an undercover agent. Agent Palmer planned to buy the grenade launcher using $1,000 in ATF funds, which he brought with him to the deal.

When Otis, Mobley, and Hutcherson pulled into the parking lot, McGrew and Agent Palmer were already there, parked in a four-door car being driven by Agent Palmer. Another informant who joined them, Dwight Bullard, was standing outside the car. McGrew got out of the car and greeted Otis. McGrew then got back into the front passenger seat of Agent Palmer's car, while Mobley and Hutcherson got into the back seat, with Mobley sitting behind McGrew and Hutcherson sitting behind Agent Palmer. Otis and Bullard stood outside the car nearby.

What happened next was sharply disputed at trial. We first recount the facts viewed in the light most favorable to the government, since that is the lens through which we must review Mobley's sufficiency challenges. United States v. Ruiz–Lopez, 749 F.3d 1138, 1141 (9th Cir.2014).

After the parties exchanged introductions, Mobley removed an object concealed under a coat he was carrying, which McGrew and Agent Palmer expected to be the promised grenade launcher. Instead, it was a loaded TEC–9 handgun. Mobley suddenly lunged forward over the center console, chambered a round, and pointed the gun at Agent Palmer's head and chest, which caused Agent Palmer to grab the gun and attempt to direct the barrel away from him. Hutcherson then drew his own gun and aimed it at Palmer's head. McGrew, sensing that a bad situation was about to get worse, jumped out of the car and took off running. Agent Palmer and Mobley engaged in a brief struggle for control of Mobley's gun, which Agent Palmer lost. While holding Agent Palmer at gunpoint, Mobley or Hutcherson shouted, “Where's the money at?” Mobley demanded, twice, that Agent Palmer empty out his pockets. At that point, Bullard reached through the open front passenger door and grabbed Mobley's gun, pulling the barrel away from Agent Palmer. As Bullard and Mobley fought for control of the weapon, Mobley tried to fire it several times, but Bullard managed to thwart those attempts by placing his thumb behind the trigger. Bullard eventually succeeded in disarming Mobley, and Agent Palmer's cover team of plainclothes officers rushed in at about the same time. They arrested Mobley on the spot and shot the still-armed Hutcherson as he attempted to flee. Officers arrested Otis a short time later in a nearby field.

According to Mobley's version of events, this was all just a big misunderstanding. Mobley testified at trial that he had negotiated his own side deal—separate from the grenade launcher sale negotiated by Otis—to sell McGrew the TEC–9 handgun for $700. Mobley claimed that he was merely trying to show the gun to McGrew when Agent Palmer aggressively tried to take it from him. Mobley asserted that he reasonably (if mistakenly) believed he was under attack, and that all of his subsequent actions were taken in self-defense.

II

Mobley challenges the sufficiency of the evidence on three fronts.

First, he contends that no reasonable jury could have rejected his claim of self-defense with respect to the assault charge under 18 U.S.C. § 111(b). Although the government bore the burden of proving that Mobley did not act in self-defense, it easily met that burden here. Obviously, if the jury had believed Mobley's version of events, it would have acquitted him. The jury chose instead to believe the testimony of Agent Palmer and McGrew, whose testimony completely negated Mobley's claim of self-defense. In deciding whom to believe, the jury did not have to take anyone's word for what happened, because Agent Palmer's car had been equipped with hidden audio and video recorders that captured everything on tape. The jury could judge for itself whose version of events was more credible. The tape does not support Mobley's version of events so decisively that a rational jury would have been compelled to believe him. In fact, if anything, the tape strongly confirms Agent Palmer's and McGrew's accounts of what happened.

Second, Mobley attacks the sufficiency of the evidence supporting the robbery conviction under 18 U.S.C. § 2114(a). That statute provides, in relevant part: “A person who assaults any person having lawful charge, control, or custody of any mail matter or of any money or other property of the United States, with intent to rob, steal, or purloin such mail matter, money, or other property of the United States, [shall be guilty of a crime].” (Emphasis added.) Mobley contends that the government did not introduce sufficient proof that Agent Palmer actually had the buy money in his “charge, control, or custody” at the time Mobley assaulted him.

Mobley is wrong. Agent Palmer testified that he brought $2,000 in ATF funds with him to the deal, which he intended to use to buy the grenade launcher and any other weapons the defendants might have offered. Contrary to Mobley's argument, the fact that Agent Palmer never “showed” the buy money during the transaction is of no consequence. It was enough for the government to prove that Agent Palmer had the ATF funds on his person, even if he never let Mobley...