United States v. Ross

• Decision Date: 11 August 2020
• Docket Number: No. 18-2877,No. 18-2800,18-2800
• Citation: 969 F.3d 829
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Howard R. ROSS, III, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Raynal King, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

969 F.3d 829

UNITED STATES of America, Plaintiff-Appellee,

v.Howard R. ROSS, III, Defendant-Appellant.

United States of America, Plaintiff-Appellee,

v.Raynal King, Defendant-Appellant.

No. 18-2800

No. 18-2877

United States Court of Appeals, Eighth Circuit.

Submitted: February 12, 2020

Filed: August 11, 2020

J. Justin Johnston, Johnston Law Firm, LLC, Kansas City, MO, argued, for defendant-appellant Howard R. Ross III.

Daniel P. Goldberg, Asst. Fed. Public Defender, Kansas City, MO, argued (Laine Cardarella, Fed. Public Defender, on the brief), for defendant-appellant Raynal King.

Brian P. Casey, Asst. U.S. Atty., Kansas City, MO, argued (Timothy A. Garrison, U.S. Atty., Jess E. Michaelsen, Asst. U.S. Atty., Kansas City, MO, on the brief), for plaintiff-appellee.

Before SMITH, Chief Judge, COLLOTON and STRAS, Circuit Judges.

COLLOTON, Circuit Judge.

Howard Ross and Raynal King were convicted on multiple federal charges arising from the carjacking, kidnapping, and murder of Jaime Patton on September 6, 2016. They appeal their convictions and sentences, and we affirm the judgments of the district court.¹

I.

According to evidence at trial, in the early morning of September 6, King and Ross decided to commit a robbery because King needed money to make a car payment. In early September, King had communicated to Ross several times that he needed money, and Ross suggested committing a robbery. On September 4, Ross texted King: "Sup foo lets rob these Mexicans down here." Just before 4 a.m. on September 6, Ross asked King in a text message to meet him, and King responded that he was on his way. Data from a cellular tower showed that the men's cellular telephones were near each other in Kansas City, Missouri, at 5:49 a.m., and that King was attempting to contact Ross.

Meanwhile, Jaime Patton was at a hospital with his wife. She was about to give birth to their second child, although the reason for her hospitalization was not disclosed at trial. Patton left the hospital to buy his wife a muffin and milk from a convenience store at about 5:50 a.m., and to stop by their apartment in Kansas City at 5:55 a.m. Shortly thereafter, Patton was abducted in his Jeep Patriot.

King drove the Jeep, with Patton as a front seat passenger, to two automatic teller machines in an effort to withdraw cash. Patton's bank records listed a failed debit card transaction at a Wells Fargo Bank ATM in Leawood, Kansas, at 6:05 a.m. The transaction failed because a wrong personal identification number was entered. Patton called his wife at 6:08 a.m. to ask whether she knew the PIN for their debit card.

Surveillance video from a Mazuma Credit Union in Kansas City, Missouri, shows that King pulled the vehicle up to an ATM, while Patton sat in the front passenger seat with his arms in front of him and his palms on the dashboard. The video also shows a passenger in the back seat behind the driver. King got out of the car and attempted to use Patton's debit card to make a withdrawal. Patton's financial records show two failed transactions at the Mazuma ATM at 6:12 a.m. and 6:14 a.m.

At approximately 6:30 a.m., a 911 caller reported finding Patton on the side of Holmes Road in Kansas City, Missouri. Patton was breathing but unresponsive. He had suffered multiple gunshot wounds

. By the time emergency services arrived, Patton had died. Surveillance video from a local business showed a vehicle consistent with the appearance of Patton's Jeep traveling down Holmes Road at about 6:30 a.m.

At 7:05 a.m., King entered a 7-Eleven store near 89th Street and Wornall Road, in Kansas City and attempted to use Patton's debit card three more times at an ATM. All three transactions failed. Surveillance video from the 7-Eleven shows King driving up in his Silver Grand Prix automobile and a man wearing a bright blue or green sweatshirt in the passenger seat.

King and Ross then went to the apartment of King's girlfriend, Tonesha Sanders. Sanders testified that Ross, whom she knew as "Shooter" or "Lil’ Howard," possessed a gun, had a splash of blood on his pants, and was wearing a blue or green hoodie. Sanders testified that the two men discussed having shot a man that morning, that King was worried about whether the man had died, and that Ross said he shot the man because he wanted that "MFer" to know "he wasn't playing." Sanders said that King denied shooting the man.

Sanders accompanied the men to a store where King tried to sell an iPhone that Ross handed to him in the car. The government infers that it was a phone stolen from Patton. When they returned to Sanders's apartment, Sanders saw Patton's Jeep parked across the street, and she told the men to move the vehicle away from her apartment. Sanders later picked up King after he moved the Jeep.

Police investigating Patton's death identified King after tracing Patton's bank records and viewing the surveillance videos from the 7-Eleven store. In an interview on September 8, King initially denied involvement in the crimes against Patton. But when officers confronted him with surveillance video from the Mazuma Credit Union, King admitted that he was involved. King claimed, however, that another man, whom he refused to name, had forced him to participate in the crimes.

While police interviewed King, other officers searched Sanders's apartment and King's car. Police found the keys to Patton's Jeep and Patton's debit card in the apartment, and located other personal items belonging to Patton in King's car.

Police also interviewed Ross after Sanders identified him as the person with King on September 6. Ross denied knowing King and denied riding in a Jeep Patriot. On Ross's iPhone, police found photos, taken a few weeks earlier, of Ross holding a Springfield XDS .45 caliber pistol. Ballistics analysis of the casings found in the Jeep and near Patton's body were consistent with bullets fired from that type of weapon.

A grand jury charged Ross and King with six offenses relating to the kidnapping, carjacking, and murder of Jaime Patton: (1) conspiracy to commit kidnapping, see 18 U.S.C. § 1201(a)(1), (c) ; (2) aiding and abetting kidnapping resulting in death, see 18 U.S.C. §§ 1201(a)(1) and 2; (3) using a firearm in furtherance of kidnapping resulting in felony murder, see 18 U.S.C. §§ 924(c), 924(j)(1), and 2; (4) carjacking resulting in death, see 18 U.S.C. §§ 2119(3) and 2; (5) using a firearm in furtherance of a carjacking resulting in felony murder, see 18 U.S.C. §§ 924(c), 924(j)(1), and 2; and (6) aiding and abetting each other in the unlawful possession of a firearm as a previously convicted felon, see 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 2. After a five-day trial, a jury convicted both men on all counts.

The district court sentenced Ross and King to life terms of imprisonment on counts one, two, and four, to run concurrently with a 120-month sentence on count six. The court also imposed consecutive life sentences on counts three and five. Ross and King appeal their convictions and sentences on several grounds.

II.

Ross and King argue they are actually innocent on counts three and five—using a firearm in furtherance of kidnapping and carjacking, respectively, that resulted in felony murder—because neither kidnapping nor carjacking is a "crime of violence" as defined by 18 U.S.C. § 924(c). The offense of conviction, 18 U.S.C. § 924(j), requires proof that the defendant caused a death in the course of a violation of § 924(c) :

(j) A person who, in the course of a violation of subsection (c) , causes the death of a person through the use of a firearm, shall—(1) if the killing is a murder (as defined in section 1111), be punished by death or by imprisonment for any term of years or for life ....

18 U.S.C. § 924(j) (emphasis added).

Subsection (c) encompasses "any person who, during and in relation to any crime of violence ... uses or carries a firearm." As relevant here, § 924(c)(3)(A) defines a "crime of violence" as an offense that is a felony and "has as an element the use, attempted use, or threatened use of physical force against the person or property of another." The government maintains that both kidnapping resulting in death and carjacking resulting in death are crimes of violence under this "force clause."

In determining whether an offense is a crime of violence under § 924(c), we apply a categorical approach. We consider the elements of the offense and examine whether they necessarily require the use, attempted use, or threatened use of physical force. United States v. Harper , 869 F.3d 624, 625 (8th Cir. 2017). "If a statute covers more conduct than the definition of ‘crime of violence,’ and ‘comprises multiple, alternative versions of the crime,’ then we may apply a ‘modified categorical approach’ to determine which alternative was the offense of conviction." Id. (quoting Descamps v. United States , 570 U.S. 254, 261-62, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) ). A statute that sets forth alternative crimes is "divisible," and "the court may ‘consult a limited class of judicial records to determine under which alternative the defendant was convicted.’ " Id. (quoting United States v. Hudson , 851 F.3d 807, 809 (8th Cir. 2017) ).

We address first the conviction under count three for use of a firearm in furtherance of a kidnapping resulting in death as charged in count two. Kidnapping is an offense under 18 U.S.C. § 1201(a) :

Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person ... shall be punished by imprisonment for any term of years or for life and, if the death of any person results, shall be punished by death or life imprisonment.

The statute defines at least two alternative crimes: (1) kidnapping and (2) kidnapping resulting in death. The latter requires proof of an additional element (i.e. , that the death of any person results) and carries a greater punishment ("death or life imprisonment"). Where the statutory alternatives carry...