United States v. Wilson

• Decision Date: 22 May 2020
• Docket Number: Nos. 18-1079 & 18-1097,s. 18-1079 & 18-1097
• Citation: 960 F.3d 136
• Parties: UNITED STATES of America v. Marquis WILSON, Appellant in No. 18-1079 United States of America v. Malcolm Moore, Appellant in No. 18-1097
• Court: U.S. Court of Appeals — Third Circuit

960 F.3d 136

UNITED STATES of America

v.Marquis WILSON, Appellant in No. 18-1079

United States of America

v.Malcolm Moore, Appellant in No. 18-1097

Nos. 18-1079 & 18-1097

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit L.A.R. 34.1a on April 28, 2020

Filed: May 22, 2020

Alison Brill, Office of the Federal Public Defender, 22 South Clinton Avenue, Station Plaza #4, Fourth Floor, Trenton, NJ 08609, Counsel for Appellant Marquis Wilson

Linda D. Hoffa, Dilworth Paxson, 1500 Market Street, Suite 3500E, Philadelphia, PA 19102, Counsel for Appellant Malcolm Moore

William M. McSwain, Robert A. Zauzmer, Salvatore L. Astolfi, Office of the United States Attorney, 615 Chestnut Street, Suite 1250, Philadelphia, PA 19106, Counsel for Appellee

Before: HARDIMAN, GREENAWAY, JR., and BIBAS, Circuit Judges

OPINION OF THE COURT

BIBAS, Circuit Judge.

A jury convicted Marquis Wilson and Malcolm Moore of two counts of armed bank robbery, conspiracy to rob banks, and two counts of using a firearm in the course of committing a crime of violence. They raise a host of challenges to their convictions and sentences. We find no error and will affirm on all fronts. In doing so, we hold that the Sixth Amendment does not categorically forbid stipulating to a crime’s jurisdictional element without the defendant’s consent or over the defendant’s objection. Though contesting or conceding guilt is for criminal defendants to decide, their lawyers may decide whether to contest or concede a crime’s jurisdictional element.

I. BACKGROUND

Wilson’s and Moore’s convictions stem from two bank robberies in November 2013. On November 4, three men robbed a Wells Fargo branch in Bala Cynwyd, Pennsylvania. The men entered the bank with what looked like a semiautomatic hand-gun and took roughly $81,000. A bank employee named Calia Kane later admitted to assisting the robbers.

The next morning, Wilson, Moore, and Martril Foster were pulled over while driving a rental car southbound on I-85 in North Carolina. After Wilson, the driver, said they were driving to Georgia and admitted that they had a lot of cash in the car, the officer suspected that the men were going to buy drugs in Atlanta. He searched the car, found the stolen cash, seized it, and turned it over to federal drug agents. Afterward, the officer released the three men.

About a week later, three men showed up at another Wells Fargo branch in Phoenixville, Pennsylvania. But the bank was closed for Veterans Day, so the men tried again the next day. This time the bank was open, and the men got away with roughly $70,000.

The police later got a tip from Lester Howell, a man whom Wilson had tried to recruit for the heists, about the first bank robbery. Howell gave the police a cell phone number of one of the robbers. The police traced that number to Wilson and pulled his cell-site location data, which put him at the scene of the Bala Cynwyd branch right before the first robbery. The data also showed five calls and seventeen text messages to and from Kane, the bank employee, that same day. And Howell identified Wilson and Moore from a video of the robbery.

Because of the similarities in the two robberies, police suspected that they involved the same perpetrators. Wilson, Moore, Foster, and Kane were charged for their roles in both. Kane and Foster took plea bargains and cooperated with the police.

Wilson and Moore were tried jointly for two counts of bank robbery, conspiracy, and two counts of using a firearm in furtherance of a crime of violence. At trial, Wilson conceded that he had been one of the robbers and instead challenged whether the gun used was real. Moore maintained his innocence. Both men were convicted on all counts. The District Court sentenced Moore to 385 months’ imprisonment, one month more than the mandatory-minimum sentence for his gun charges. Wilson received 519 months, the top of his Sentencing Guidelines range.

Both men now appeal. The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

II. COUNSEL’S STIPULATION THAT THE BANKS WERE FEDERALLY INSURED DID NOT VIOLATE THE SIXTH AMENDMENT

We start with the Sixth Amendment claim, as it is one of first impression in our Circuit. Wilson argues that his counsel violated his right to put on the defense of his choice by stipulating that both Wells Fargo branches were federally insured. If a defendant robs a federally insured bank, that insurance gives prosecutors a jurisdictional hook to charge him with federal bank robbery under 18 U.S.C. § 2113(a) and (f). So counsel’s stipulation to this fact satisfied the jurisdictional element of federal bank robbery. Wilson says the stipulation was there-fore "tantamount to a guilty plea." Wilson Br. 37. Moore phrases the same argument differently, objecting that he was never advised of, and never consented to, his counsel’s stipulation.

We disagree. We hold that a defendant need not consent to a jurisdictional stipulation. Even if a lawyer stipulates to a crime’s jurisdictional element without getting his client’s consent or over his client’s objection, that stipulation does not per se violate a criminal defendant’s Sixth Amendment right to counsel.

A. Criminal defendants have the right to dictate the objectives of their defense and to make fundamental decisions

When a criminal defendant challenges his counsel’s tactical choices, we usually analyze that challenge under the two-prong test of Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). But when a defendant is deprived of counsel entirely, the error is structural and the defendant gets a new trial. See Gideon v. Wainwright , 372 U.S. 335, 340–42, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Likewise, when a defendant insists on representing himself, denying his right to do so is structural. McKaskle v. Wiggins , 465 U.S. 168, 177–78 & n.8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). So too is denying a defendant the right to retain counsel of his choice. United States v. Gonzalez-Lopez , 548 U.S. 140, 150, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006). Thus, "[t]he Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense." Faretta v. California , 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

The Sixth Amendment respects a defendant’s right to counsel and right to autonomy by dividing ultimate decisionmaking authority between lawyer and defendant. Lawyers control tactics, while defendants get to set big-picture objectives. For tactical decisions, like which arguments to press and what objections to raise, the lawyer calls the shots. See Gonzalez v. United States , 553 U.S. 242, 248–49, 128 S.Ct. 1765, 170 L.Ed.2d 616 (2008) (citing New York v. Hill , 528 U.S. 110, 114–15, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000) ). But fundamental decisions belong to the defendant alone: whether to plead guilty, waive a jury trial, testify, or appeal. Jones v. Barnes , 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983).

Recently, in McCoy v. Louisiana , the Supreme Court clarified the line between tactical and fundamental decisions. See ––– U.S. ––––, 138 S. Ct. 1500, 1507–08, 200 L.Ed.2d 821 (2018). On the one hand, "strategic choices about how best to achieve a client’s objectives" are decisions for lawyers, so we review them for ineffectiveness. Id. at 1508. On the other hand, "choices about what the client’s objectives in fact are " belong to defendants themselves, and violating a defendant’s right to make those choices is structural error. Id.

In McCoy , the defendant was charged with murdering three relatives of his estranged wife and faced a possible death sentence. 138 S. Ct. at 1505–06. His counsel wanted to concede guilt and argue for mercy at sentencing. Id. at 1506 & n.2. But the defendant insisted on contesting guilt; he demanded that counsel instead advance a conspiracy theory that he was being framed by crooked state and federal officials. See id. at 1513 (Alito, J., dissenting). Counsel ignored that demand and conceded before the jury that McCoy had killed the victims. Id. at 1506–07 (majority opinion).

The Supreme Court vacated McCoy’s convictions. The Sixth Amendment, it held, guarantees defendants the "[a]utonomy to decide that the objective of the defense is to assert innocence." 138 S. Ct. at 1508. Violation of that right is structural error. Id. at 1511. The Court observed that a defendant "may wish to avoid, above all else, the opprobrium that comes with admitting he killed family members." Id. at 1508. So "[w]hen a client expressly asserts that the objective of ‘his defence’ is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt." Id. at 1509 (quoting U.S. Const. amend. VI ). Yet the Court did not explain what kinds of concessions count as "conceding guilt." That is the issue here.

B. Whether to contest a crime’s jurisdictional element is not a fundamental decision reserved for the defendant

Wilson argues that under McCoy , his counsel’s stipulation to the jurisdictional element violated his Sixth Amendment rights. But this case is different from McCoy . For one, counsel did not override his client’s expressed wishes. There is no evidence that either defendant objected to the stipulation or demanded that counsel not concede this element of the crime. Appellants argue only that counsel should have consulted with them or that the District Court should have advised them about it. True, the stipulation was in some sense contrary to Wilson’s asserted "objective ... to contest the charges against him" generally, and to Moore’s decision to challenge his guilt "in all respects." Wilson Br. 37; Moore Br. 39. But neither can show that he "expressly assert[ed]," and that counsel ignored, a specific demand to fight the jurisdictional element. McCoy , 138 S. Ct. at...