United States v. Wilson
| Docket Number | CRIMINAL ACTION 14-209-1,14-209-2 |
| Decision Date | 30 September 2021 |
| Parties | UNITED STATES OF AMERICA v. MARQUIS WILSON, et al. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Marquis Wilson and Malcolm Moore planned and robbed two Wells Fargo banks. Mr. Moore carried a gun into the banks. The Honorable Legrome D. Davis held a jury trial resulting in the jury's findings of guilt for conspiracy to commit armed bank robbery, armed bank robbery, and using or carrying a firearm during a crime of violence. We studied and denied their post-trial motions after Judge Davis retired and the Chief Judge reassigned this case to us. We sentenced the two men entirely consistent with Congress's mandate. Messrs Moore and Wilson timely appealed. Our Court of Appeals affirmed the jury verdicts and our sentences. They now seek habeas relief raising claims not exhausted in the Court of Appeals but also raise claims converting earlier appellate arguments into claims of ineffective assistance by their trial lawyers. We studied the record on all claims including their concerns with an allegedly duplicitous indictment based on roles as principal, conspirator, or aiding and abetting along with erroneous jury instructions and verdict sheet. After careful review of the indictment and challenges to Judge Davis's instructions and verdict slip, we find no basis to grant habeas relief based on ineffective assistance of counsel or other bases to grant habeas on the procedurally defaulted and meritless claims. We find no basis for a certificate of appealability. We deny Messrs. Wilson's and Moore's petitions for habeas relief.
The grand jury charged Marquis Wilson, Malcolm Moore, Calia Kane and Martril Foster with conspiracy to commit armed bank robbery; two counts of armed bank robbery and aiding and abetting armed bank robbery; and two counts of using, carrying, and brandishing a firearm in furtherance of the bank robberies and aiding and abetting the same.[1] Ms. Kane and Mr. Foster plead guilty; Messrs. Wilson and Moore stood trial before Judge Davis.
The United States adduces evidence Messrs. Wilson and Moore committed two bank robberies.
The United States adduced trial evidence Messrs. Wilson and Moore robbed two Wells Fargo Bank branches.[2] They first plotted to rob a Wells Fargo in Bala Cynwyd in November 2013.[3] They agreed Mr. Moore would bring a gun into the bank.[4] Ms. Kane, a bank employee, informed her co-conspirators when they should enter by a text message.[5] Mr. Moore entered first with a gun.[6] Mr. Wilson entered next with a duffle bag.[7] Mr. Foster entered last, locked the door, and stood watch to ensure no one entered or left the bank.[8] Messrs. Wilson and Moore vaulted the counter.[9] They demanded money from the bank employees.[10] They stole approximately $80, 000.[11] Trial testimony confirms the three robbers used only one gun.[12] The jury watched video footage of the robbery.[13]
The three robbers fled.[14] A North Carolina police officer stopped them days later and confiscated the stolen funds.[15] The officer did not arrest them.[16] The robbers returned to Philadelphia and planned to rob a second Wells Fargo in Phoenixville in November 2013.[17] They planned like their first robbery, and Mr. Moore again handled the only gun.[18] The robbers stole approximately $70, 000.[19] The jury watched video footage of the robbery.[20]
The parties stipulate to evidence regarding Wells Fargo's FDIC insurance.
Counsel stipulated in the jury's presence Adrianne Bailey, who works for Wells Fargo's loss prevention unit, would testify the Federal Deposit Insurance Commission insured both Wells Fargo locations during both robberies.[21] The parties also stipulated to the admission of a certificate supporting the FDIC insurance.[22]
The stipulation read:
Judge Davis instructs the jury.
Judge Davis instructed the jury their verdict had “to be unanimous.”[24] He said the verdict “would have to be 12 to nothing on the particular count, because if the vote is something other than 12 to nothing, that's not a valid verdict.”[25]
Judge Davis also instructed while Messrs. Wilson and Moore stood trial together, “each defendant is entitled to a separate, independent judgment on the five charges against them.”[26] He told the jury it should “evaluate[] separately” the five counts against each defendant.[27]
Judge Davis instructed on three theories of liability: principal liability, “where you're responsible for what you do personally”; “conspiracy liability, where you are responsible for what your partners, under certain circumstances, do”; and “accomplice liability, ” where the defendant is responsible “for the conduct of another if he or she is an accomplice.”[28] Judge Davis explained the elements of principal, conspiracy, and accomplice liability.[29] He instructed the jury could find conspirators and accomplices responsible for the conduct of others.[30] He thought accomplice liability “relates to the weapons offense, but it's your judgment about what, if anything, it relates to.”[31] Judge Davis instructed the jury, “[A]s I understand the government's case, this applies principally to the weapons offense.”[32]
Judge Davis instructed on the weapons offense. He said the jury needed to find Messrs. Wilson and Moore “use[d] or carrie[d]” a firearm to convict on counts three and five.[33] He defined “uses or carries a firearm” as “having a firearm available on a person to assist or aid in the commission of the armed bank robbery.”[34] He continued: [35] Judge Davis explained how accomplice liability applies to the weapons offense: “[T]he aider and abettor, the person not carrying the firearm, [needed to have] advance knowledge . . . that the confederate would carry or use the firearm during that particular offense.”[36]
The verdict sheet included a special interrogatory on “brandishing.”
Judge Davis and the lawyers “ha[d] a couple of last-minute changes [to the verdict sheet] so that it really reflects the way that this case has been tried.”[37] Judge Davis informed the jury if it found either defendant guilty of “any weapons offense, you will be asked to answer a question called a jury interrogatory.”[38] He read the interrogatory to the jury: “Do you unanimously find that the government proved beyond a reasonable doubt that whatever defendant (or his conspirator or accomplice) brandished a firearm when committing this offense?”[39] The verdict sheet contained substantially the same questions for each defendant in counts three and five.[40] The verdict sheet did not contain the “(or his conspirator or accomplice)” clause in any of its other counts.[41] The trial transcript shows Judge Davis discussed this interrogatory with Messrs. Wilson and Moore's trial counsel, but the discussion is not transcribed.[42]
Judge Davis defined “brandish” as “with respect to a firearm, to display all of part of the firearm or otherwise make the presence of the firearm known to another person in order to intimidate that person, regardless of whether the firearm is directly visible to the person.”[43]
The jury finds Messrs. Wilson and Moore guilty of all counts.
The jury found Messrs. Wilson and Moore guilty of all five counts: one count of conspiracy to commit armed bank robbery (count one); two counts of armed bank robbery (counts two and four); and two counts using or carrying a firearm during a crime of violence (counts three and five).[44] The jury also checked “Yes” to both interrogatories asking whether the defendants brandished the firearm.[45] Messrs. Wilson and Moore seek post-trial relief.
Messrs. Wilson and Moore moved for acquittal and a new trial.[46] Mr. Wilson argued the United States adduced insufficient evidence he used an actual firearm in the offense.[47] Mr. Moore argued the United States adduced insufficient evidence of conspiracy and armed bank robbery, insufficient evidence Mr. Moore used a firearm during the bank robbery, and Mr. Wilson's admission during opening statements he engaged in the robberies prejudiced Mr. Moore.[48] Mr. Moore also argued the United States failed to prove an essential element of bank robbery by failing to prove the FDIC insured the banks and his trial counsel was ineffective for stipulating to the FDIC element.[49] Messrs. Wilson and Moore joined each other's motions.[50]
We held a hearing on the parties' post-trial motions.[51] A bank's FDIC insurance gives us jurisdiction.[52] We questioned the United States and Messrs. Wilson and Moore's post-trial counsel...
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