United States v. Anthony Caldwell

7 F.4th 191

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 3, 2021
• Docket: 19-4019
• Status: Published

Opinion

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4019

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANTHONY LAMONT CALDWELL,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:17−cr−00040−MOC−DSC−1)

Argued: May 5, 2021 Decided: August 3, 2021

Before NIEMEYER, WYNN, and RICHARDSON, Circuit Judges.

Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge Niemeyer and Judge Richardson joined.

ARGUED: Chiege Ojugo Kalu Okwara, Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: William T. Stetzer, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. WYNN, Circuit Judge:

Anthony Caldwell appeals from his conviction after a jury trial for charges related

to bank robbery and firearm possession. He raises numerous challenges to his convictions,

including to the district court’s denial of his motion to suppress and to various evidentiary

rulings. We affirm.

I.

On the evening of December 9, 2016, two young men wearing dark clothing, masks,

and gloves entered a Wells Fargo bank in Charlotte, North Carolina. Each was armed with

a revolver. They stole nearly $5,800 in cash from the bank’s tellers before fleeing in a car.

The pair were later identified as Michael Cole and Rahshie Mitchell, both of whom were

minors at the time. Unbeknownst to them, two GPS tracking devices were embedded in the

stolen cash.

Two officers tracked the GPS signal to an address within a couple miles of the bank,

where they stopped and exited their vehicle. One of the officers heard rustling in the woods

and, turning to look, witnessed three individuals running away. The officers began to

pursue, but for safety reasons decided to call in backup, including K-9 and helicopter units.

Those additional units arrived within minutes, and the K-9 handler announced that a search

with the dog would commence. The police presence was not subtle: between their

flashlights, the blue lights and spotlights on their cars, the helicopter above, and the sounds

of communications between the officers on site and over the radio, it would have been clear

to anyone in the area that the police were there and were engaged in a manhunt.

2 Nevertheless, Caldwell remained hidden, shielding himself amid vines and weeds

along a fence. One officer “walked right past” Caldwell in the brush, only noticing him

when the police dog alerted to his presence. J.A. 1252. 1 The K-9 unit ultimately

apprehended Caldwell, with the dog biting his arm in the process. A black bag containing

nearly all of the missing cash as well as one of the GPS trackers was found underneath

Caldwell.

Caldwell told the police he had been carjacked by two men while sitting in a

Chevrolet Impala near the Wells Fargo. At trial, he testified that the carjackers had pistol-

whipped him several times and forced him to flee with them; that he passed out from being

hit in the head; and that he only woke up when the police dog bit him.

The officers were not convinced by Caldwell’s story and arrested him. They

continued the search, but were unsuccessful in locating Cole and Mitchell. Arrest warrants

were eventually issued for the two teenagers after DNA evidence linked each of them to

the robbery.

Shortly after arresting Caldwell, officers found the Impala nearby. In plain view in

the back seat were a black jacket, a North Carolina license plate, and a black revolver. The

car’s rear sported an invalid temporary license plate. 2 Officers located a black hooded

sweatshirt and glove along the fence, as well as a ski mask on the ground next to the vehicle.

They also found “two loose $20 bills of U.S. currency, a cash wrapper that would go around

1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal. 2 Only rear, not front, license plates are required in North Carolina.

3 a stack of bills, and [the other GPS] cash tracker” in the front yard of the address where the

suspects had fled. J.A. 1280.

The officers sealed the vehicle at the scene before towing it to the law enforcement

center, where they searched it after obtaining a warrant. A search of the passenger

compartment revealed a “large black jacket, the black Rohm revolver, [a] black ski mask,

[a] black toboggan, [and] black gloves.” J.A. 1314. However, officers did not search the

vehicle’s trunk because the car battery was dead, rendering the trunk-opening mechanism

inoperable.

After the initial search, police moved the vehicle to an impound lot. Nearly two

weeks later, on December 22, detectives jump-started the car’s battery and opened the

trunk. The trunk contained a silver revolver, black gloves, and a black skullcap.

On November 14, 2017, a federal grand jury returned a four-count superseding

indictment charging Caldwell with conspiracy to commit bank robbery, in violation of 18

U.S.C. § 2113(a) and (d) (Count I); bank robbery, in violation of 18 U.S.C. §§ 2 and

2113(a) and (d) (Count II); possession of a firearm in furtherance of a crime of violence,

in violation of 18 U.S.C. §§ 2 and 924(c) (Count III); and possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count IV). Caldwell pleaded not

guilty and requested a jury trial.

Caldwell filed a motion to suppress all the evidence found in his vehicle, alleging

that the searches violated his constitutional rights under the Fourth Amendment. After

conducting a hearing, the district court denied the motion, and a jury trial commenced in

4 January 2018. After deliberating, the jurors reported a split vote, leading the district court

to declare a mistrial.

The case was retried. During the second trial, Cole and Mitchell each testified that

they had known Caldwell before the robbery and that he had recruited them to commit the

crime, including providing weapons and details about the bank. They also testified that

Caldwell served as the getaway driver. Caldwell testified on his own behalf, claiming that

he had not previously known Cole and Mitchell and repeating his story that they carjacked

and pistol-whipped him.

The jury returned a guilty verdict on all four Counts. As to Count III, possession of

a firearm in furtherance of a crime of violence, the jury found that Caldwell (or others aided

and abetted by him) brandished the firearm.

The district court sentenced Caldwell to 284 months imprisonment: 60 months on

Count I and 200 months on Counts II and IV, all to be served concurrently, followed by 84

months on Count III, to be served consecutively. Caldwell timely filed a notice of appeal.

II.

Caldwell raises numerous challenges to the district court’s handling of his motions

before, during, and after trial, as well as to its evidentiary rulings and trial-management

decisions. Further, for the first time in his reply brief, Caldwell argues that two recent

Supreme Court decisions require us to vacate his firearm convictions. We find none of his

arguments persuasive and therefore affirm.

5 A.

We begin with Caldwell’s challenge to the district court’s denial of his motion to

suppress. In evaluating this claim, we review legal conclusions de novo and factual findings

for clear error and construe all evidence in the light most favorable to the government.

United States v. Vaughan, 700 F.3d 705, 709 (4th Cir. 2012).

Caldwell alleges that both searches of the vehicle were illegal: the December 9

search because the police neglected to follow proper warrant procedures, and the December

22 search of the trunk because the warrant was no longer valid and no exigent

circumstances applied. 3 The district court concluded that under the automobile exception,

a warrantless search of the vehicle “as it sat in the woods on the night of [the] robbery”

would have been justified, and that the police also could have conducted an inventory

search of the vehicle at the police station or after the car was impounded. United States v.

Caldwell, No. 3:17-cr-00040-MOC-DSC, 2018 WL 491782, at *2 (W.D.N.C. Jan. 19,

2018). We conclude that the automobile exception justified both searches. 4

Under the Fourth Amendment, law enforcement officers are generally required to

obtain a warrant before conducting a search. Maryland v. Dyson, 527 U.S. 465, 466 (1999)

3 The vehicle was owned by Caldwell’s girlfriend’s son. Nevertheless, as Caldwell was driving the vehicle shortly before its seizure, the government does not contest that he can raise a Fourth Amendment challenge to the searches. See United States v. Terry, 909 F.3d 716, 720 (4th Cir. 2018). 4 We “may affirm on any grounds apparent from the record.” United States v. Ali, 991 F.3d 561, 571 (4th Cir. 2021) (internal quotation marks omitted). Because we affirm the district court’s decision under the automobile exception, we do not reach the parties’ arguments regarding other potentially applicable exceptions or the validity of the warrant.

6 (per curiam). However, the automobile exception allows police to conduct a warrantless

search of a readily mobile vehicle if they have probable cause to do so. Id. at 467. Probable

cause “exist[s] where the known facts and circumstances are sufficient to warrant a man of

reasonable prudence in the belief that contraband or evidence of a crime will be found.”

Ornelas v. United States, 517 U.S. 690, 696 (1996).

Probable cause was present here. The officers located the Impala at the site where

they had followed the GPS trackers immediately after the robbery. An officer viewed three

individuals fleeing the scene. Despite the significant commotion and large police presence,

Caldwell did not call out for officer assistance, and instead was only located by a police

dog—which found him hidden in brush on top of a bag containing a GPS tracker and

$5,614 of the $5,791.60 that had been stolen. Police observed that the vehicle had an invalid

temporary license plate, with a permanent license plate on its back seat. They located a

black hooded sweatshirt, a glove, loose currency, a cash wrapper, and a second GPS tracker

on the ground in close proximity to the vehicle, and a ski mask on the ground next to it.

They observed a revolver and black jacket in plain view on the back seat. The clothing and

revolver matched the general description of that used by the robbers. Caldwell himself

claimed that he had been carjacked in the Impala, by individuals the police had strong

reason to believe had perpetrated the bank robbery.

These numerous observations gave the officers probable cause to believe that the

vehicle contained evidence related to the bank robbery. Therefore, pursuant to the

automobile exception, they were entitled to search the entire vehicle, including the trunk,

without obtaining a warrant. United States v. Ross, 456 U.S. 798, 825 (1982) (where the

7 automobile exception applies, “it justifies the search of every part of the vehicle”). That

the officers chose to take the extra precaution of obtaining a warrant prior to the December

9 search does not affect the legal conclusion that a warrantless search was permissible.

Additionally, when a warrantless search of a vehicle could have been conducted on

the scene pursuant to the automobile exception, a warrantless search is also justified after

the vehicle has been impounded and immobilized as long as probable cause still exists. 5

Florida v. Meyers, 466 U.S. 380, 382 (1984) (per curiam) (citing Michigan v. Thomas, 458

U.S. 259 (1982) (per curiam); Chambers v. Maroney, 399 U.S. 42 (1970)); see United

States v. Gastiaburo, 16 F.3d 582, 586 (4th Cir. 1994) (noting that “the justification to

conduct a warrantless search under the automobile exception does not disappear merely

because the car has been immobilized and impounded” and collecting cases). 6 Even where

5 The district court found that the Impala “was a lawfully impounded vehicle.” J.A. 204. 6 Years after this Court’s opinion in Gastiaburo and the Supreme Court’s opinions in Meyers, Thomas, and Chambers, the Supreme Court issued its opinion in Arizona v. Gant. Gant narrowed certain exceptions to the warrant requirement in order to keep the exceptions rooted in their justifications. Arizona v. Gant, 556 U.S. 332, 346–47 (2009). The Court emphasized that a broader interpretation “would serve no purpose except to provide a police entitlement,” which was inappropriate because “it is anathema to the Fourth Amendment to permit a warrantless search on that basis.” Id. at 347. This Court has recently reiterated the same. United States v. Davis, 997 F.3d 191, 202–03 (4th Cir. 2021). And notably, the mobility of vehicles is the primary (though not the only) justification for the automobile exception. See Collins v. Virginia, 138 S. Ct. 1663, 1669–70 (2018) (noting that ready mobility is the “core justification for the automobile exception” but that an “additional rationale” exists, namely, that mobile vehicles are already pervasively regulated). It is therefore conceivable that the Supreme Court could someday limit the current reach of the automobile exception. Cf. Benjamin J. Priester, A Warrant Requirement Resurgence?: The Fourth Amendment in the Roberts Court, 93 St. John’s L. Rev. 89, 121–25 (2019) (arguing that recent Supreme Court case law could suggest a

8 a significant amount of time has passed between the impoundment of a defendant’s car and

a subsequent warrantless search, this Court has found that “the passage of time between

the seizure and the search of [the defendant]’s car is legally irrelevant” and the automobile

exception still applies as long as probable cause remains to justify the search. Gastiaburo,

16 F.3d at 587 (upholding search of impounded vehicle conducted thirty-eight days after

impoundment when a new tip gave probable cause to search a previously unsearched

hidden compartment in the vehicle).

Accordingly, when detectives returned to the impounded vehicle on December 22—

thirteen days after impoundment—to jump-start the car battery and search the trunk, they

were justified in doing so without obtaining a warrant. Like in Gastiaburo, the passage of

time did not interfere with the applicability of the automobile exception. Certainly, “there

is no question that time is a crucial element of probable cause.” United States v. McCall,

740 F.2d 1331, 1335 (4th Cir. 1984). But here, probable cause to support the search

willingness by the Court to reconsider the extent of the automobile exception and noting that “Chambers seems particularly dubious now that warrants can be obtained so quickly” because “there is little meaningful possibility that evidence will disappear from a motor vehicle in a secured police facility in the time it would take to obtain an electronic warrant”).

Nevertheless, Gant did not directly undermine the rationale of Meyers, and we are, of course, still bound by both Meyers and Gastiaburo. See Payne v. Taslimi, 998 F.3d 648, 654 (4th Cir. 2021) (noting that “[w]e must simply apply [the Supreme Court’s] commands” because “it remains the Supreme Court’s ‘prerogative alone to overrule one of its precedents’” (quoting State Oil Co. v. Khan, 522 U.S. 3, 20 (1997))); see also United States v. Arriaza, 401 F. App’x 810, 812 (4th Cir. 2010) (per curiam) (“Gant does not undermine this court’s jurisprudence pertaining to warrantless searches of impounded vehicles.”).

9 remained intact as of December 22 given that officers were not able to access the trunk

during the December 9 search, the trunk remained sealed in the meantime, and officers had

not yet located the second weapon. 7 Therefore, both searches fell well within the

parameters of the automobile exception, and the district court did not err in denying the

motion to suppress.

B.

Next, we review Caldwell’s challenge to the district court’s denial of his motion to

disqualify a witness’s counsel and to exclude witness testimony. We review these decisions

for abuse of discretion. See United States v. Urutyan, 564 F.3d 679, 686 (4th Cir. 2009)

(disqualification of counsel); United States v. Fulks, 454 F.3d 410, 421 (4th Cir. 2006)

(witness testimony).

7 On appeal, Caldwell points to this Court’s decision in United States v. Pratt, 915 F.3d 266 (4th Cir. 2019), which he argues undermines Gastiaburo. Of course, if the two decisions did conflict, the earlier—Gastiaburo—would govern. United States v. Spinks, 770 F.3d 285, 289–90 (4th Cir. 2014). But they are distinguishable. The issue in Pratt was whether an extended pre-warrant seizure of a defendant’s property—there, a cell phone— could become unreasonable with the passage of time. Pratt, 915 F.3d at 271. Here, Caldwell has not pressed any argument that the extended seizure of the vehicle was itself unreasonable. Rather, the question is whether the passage of time undermined probable cause supporting a warrantless search. As we describe above, in these circumstances, it did not.

We also note that there is nothing in the record indicating whether the car battery was dead at the time police located the vehicle. However, neither search was performed until after the car was taken into police custody, meaning that Meyers and Gastiaburo apply. Accordingly, we need not address whether a car with a dead battery satisfies the “readily mobile” requirement of the automobile exception. Cf. United States v. Poole, 829 F.2d 37, at *4 (4th Cir. 1987) (unpublished table decision) (automobile exception did not apply to a deserted car that lacked a battery altogether).

10 Caldwell sought to disqualify the counsel who was representing Mitchell—one of

Caldwell’s teenage coconspirators, who testified against him at trial—and to prevent

Mitchell from testifying. The basis of the motion was that Mitchell’s counsel, Peter

Nicholson, was a public defender based in the same office as Anna McMillan, and

McMillan had represented Caldwell when he initially faced state-court charges related to

the Wells Fargo robbery. Therefore, Caldwell argued that Nicholson was conflicted out of

representing Mitchell for the purposes of Mitchell’s testimony against Caldwell, and that

Mitchell should not be permitted to testify due to the conflict.

The district court conducted a voir dire interview of Nicholson to determine whether

a conflict of interest existed that would require his disqualification or the exclusion of his

client’s testimony. The interview revealed that Nicholson’s coworker, McMillan,

represented Caldwell in matters related to state charges for the Wells Fargo robbery in

December 2016. 8 In February 2018, after Mitchell was arrested for his involvement in the

robbery, Nicholson began representing Mitchell. Nicholson testified that he had only

become aware of his office’s prior representation of Caldwell a few days earlier, that he

did not have access to Caldwell’s files, and that he knew nothing about Caldwell’s case.

The district court determined that because there was no “evidence that [Nicholson] had

information adverse to [Caldwell] which he provided to [Mitchell],” no “actual conflict”

8 The state stopped pursuing the charges against Caldwell soon after his arrest and ultimately dismissed them. He was federally indicted in February 2017.

11 existed to create any prejudice to Caldwell. J.A. 1471, 1473. Therefore, Mitchell would be

allowed to testify.

However, the district court recognized that under the North Carolina Rules of

Professional Conduct, Nicholson might face an ethical problem arising from an imputed

conflict if he continued representing Mitchell. To resolve this question, Nicholson

contacted the state bar. 9 The bar advised that an imputed conflict existed, but that since it

would take time to appoint a new attorney for Mitchell, it was within the court’s discretion

to allow Nicholson to represent Mitchell during his testimony and withdraw immediately

afterward. Reiterating that there was “no real conflict,” the district court granted Nicholson

permission to represent Mitchell while he testified to avoid further delay of the trial. J.A.

1486. Nicholson ultimately filed a motion to withdraw in the state court five days later, on

the date the jury reached its verdict in Caldwell’s trial.

We find no abuse of discretion in either of the district court’s decisions related to

Nicholson and Mitchell. Certainly, “[f]ederal courts have an independent interest in

ensuring that criminal trials are conducted within the ethical standards of the profession

and that legal proceedings appear fair to all who observe them.” Wheat v. United States,

486 U.S. 153, 160 (1988). And when a potential conflict of interest “is brought to the

9 The North Carolina State Bar permits “any lawyer” to “request informal advice from the ethics department” of the bar if the lawyer has questions “[a]fter consulting the Rules of Professional Conduct and the relevant ethics opinions.” Ethics/Rules of Professional Conduct, N.C. State Bar (last visited July 26, 2021), https://www.ncbar.gov/for-lawyers/ethics/ (saved as ECF opinion attachment).

12 attention of the trial court, . . . the court has the responsibility to investigate further.” United

States v. Tatum, 943 F.2d 370, 379 (4th Cir. 1991).

But here, the district court seriously considered and took the necessary steps to

resolve the ethics and fairness concerns involved. When the court became aware that

Nicholson had a potential conflict of interest in representing Mitchell, it investigated the

matter. It was faced with an unusual situation; the more typical counsel-witness conflict

arises where defense counsel previously represented a government witness. In such a case,

the potential conflict of interest lies in the “dual risks of [the attorney] improperly using

privileged communications from the previous representation or, by protecting those

communications, failing effectively to cross-examine the witness as his present client’s

interest require[s].” United States v. Williams, 81 F.3d 1321, 1325 (4th Cir. 1996) (citing

United States v. Ross, 33 F.3d 1507, 1523 (11th Cir. 1994)).

In this case, however, a witness’s counsel’s office previously represented the

defendant. Therefore, the cross-examination concern evaporates, leaving only the potential

for the improper conveyance of privileged communications. See United States v. Ramon-

Rodriguez, 492 F.3d 930, 944 (8th Cir. 2007) (noting this danger in a similar situation).

Recognizing this, the district court conducted a voir dire interview of Nicholson and

determined that Nicholson “knew nothing about” his office’s earlier representation of

Caldwell. J.A. 1473. We conclude that the court acted well within its discretion and did not

err in allowing Mitchell to testify.

As for decisions about the disqualification of counsel, the district court has broad

discretion and must “exercise its own independent judgment as to whether the proceedings

13 are likely to have the requisite integrity if a particular lawyer is allowed to represent a

party” (or, in this case, a witness). Williams, 81 F.3d at 1324. The district court did not

abuse its discretion.

Most importantly, the district court satisfied itself that no actual conflict jeopardized

the integrity of the proceedings. Further, while the state bar’s advice to Nicholson was not

binding on the district court’s discretion, the court appropriately considered it as supporting

guidance. According to that advice, with the district court’s permission, Nicholson could

ethically represent Mitchell during his testimony and withdraw afterward. Given the broad

discretion conferred on the court and the court’s finding that Nicholson had not been

exposed to any confidential information related to Caldwell, the court acted within its

discretion when it allowed Nicholson to represent Mitchell for purposes of his testimony.

See United States v. Medina, 161 F.3d 867, 870 (5th Cir. 1998) (holding that the district

court did not abuse its discretion in allowing a public defender to continue representing her

client after discovering an imputed conflict because she “never faced an actual conflict of

interest”); LaSalle Nat’l Bank v. Cnty. of Lake, 703 F.2d 252, 257 (7th Cir. 1983) (“If the

attorney can clearly and persuasively show that he was not privy to the confidences and

secrets of the client, a court will not be held to have abused its discretion in concluding that

disqualification is unnecessary[.]”).

C.

Caldwell raises additional challenges to the district court’s evidentiary rulings,

which we also review for abuse of discretion. United States v. Cloud, 680 F.3d 396, 401

(4th Cir. 2012). “A court has abused its discretion if its decision is guided by erroneous

14 legal principles or rests upon a clearly erroneous factual finding.” United States v. Johnson,

617 F.3d 286, 292 (4th Cir. 2010) (internal quotation marks omitted).

Evidentiary rulings are also “subject to harmless error review.” United States v.

Cone, 714 F.3d 197, 219 (4th Cir. 2013). “[A]n error is harmless if it’s ‘highly probable

that it did not affect the judgment.’” United States v. Burfoot, 899 F.3d 326, 340 (4th Cir.

2018) (alterations omitted) (quoting United States v. Nyman, 649 F.2d 208, 212 (4th Cir.

1980)). “The decisive factors to consider are ‘the closeness of the case, the centrality of the

issue affected by the error, and the steps taken to mitigate the effects of the error.’” Id. at

340–41 (quoting Nyman, 649 F.2d at 212). We conclude that any errors related to the

challenged evidentiary decisions were harmless.

1.

In presenting its case, the defense entered into evidence a photograph of Caldwell

that was purportedly taken a few hours before the robbery on December 9, 2016. The

purpose was to show what Caldwell looked like and what he was wearing prior to the

robbery.

During cross-examination, the government questioned Caldwell about several

alleged discrepancies related to the photograph in order to demonstrate that it had not, in

fact, been taken the day of the robbery. First, the government asked Caldwell about the

house in the background of the photograph. Caldwell admitted that he no longer lived at

that address on December 9, though he explained that he had stopped by the pictured old

house to collect items to bring to his new house. Second, the government inquired why

15 Caldwell looked “40 pounds heavier” in another photograph that was indisputably taken

on December 9 after the robbery. J.A. 1733.

At issue here is a third line of questioning regarding the photograph. The

government pointed out that Caldwell and another person in the photograph were wearing

short-sleeved shirts and prompted Caldwell to verify that the photograph was taken on

December 9. Caldwell confirmed, adding that “[i]t was warm that day” and that “the sun

was out” when the photo was taken around 3:00 P.M. J.A. 1731–32. The government then

asked, “Would it surprise you to know the high temperature was 44 degrees on that day at

2:52 p.m.?” J.A. 1732. After the court overruled Caldwell’s objection to the question,

Caldwell responded that it was indeed a surprise to hear that and that it “[d]idn’t seem like

it because [he] had on short sleeves.” Id.

On appeal, Caldwell argues that the court erred when it “allowed the prosecutor to

offer evidence of weather conditions through incompetent evidence.” Opening Br. at 28–

29. 10 As he cites no legal authorities for this argument, “we would be well within our

discretion and authority to find this argument forfeited in its entirety.” Burgess v.

Goldstein, 997 F.3d 541, 555 n.6 (4th Cir. 2021) (citing Li v. Gonzales, 405 F.3d 171, 175

10 Caldwell also argues that “[t]here was no basis for the court’s insinuations nor accusations” regarding whether the exhibit had been changed since the previous trial. Opening Br. at 29. Specifically, outside the presence of the jury, the district court asked Caldwell whether the photograph had been altered because, during the first trial, the court had noticed green foliage and grass in the background of the photograph—which now appeared to have been cropped out. As the jury did not hear these comments, Caldwell’s argument that he was prejudiced when the jury heard them is without merit.

16 n.4 (4th Cir. 2005); Fed. R. App. P. 28(a)(8)(A)). In any event, we conclude that even if

Caldwell is correct and the court erred in allowing the question, any error was harmless.

First, the government’s other questions—noting that the photograph was taken in

front of a house that Caldwell no longer lived in on December 9, and that he appeared

significantly heavier in another photograph taken later that day—were sufficient to create

doubt that the defense’s photograph was taken on December 9. And a Charlotte-based jury

may well have found it suspicious that the individuals in the photograph were wearing short

sleeves in North Carolina in mid-December, even without hearing the details of the weather

on that date. Thus, even if the court had not permitted the challenged question, the jury

would have had ample reason to doubt the dating of the photograph.

More significantly, even if the government had asked no questions about the

photograph, it had limited value to Caldwell’s defense. At best, the photograph showed

what Caldwell looked like earlier in the day before he was allegedly carjacked and beaten

repeatedly with a gun. But the government did not dispute that Caldwell was uninjured

prior to the robbery. The parties’ disagreement centered on the extent and cause of his

injuries from the time of the robbery until his arrest. A photograph taken before the robbery

could shed no light on that issue. Accordingly, we conclude that even if it was error for the

district court to allow the challenged question, that error was harmless.

2.

Prior to his second trial, Caldwell filed a motion for disclosure of the juvenile

records of two of the government’s witnesses, Mitchell and Cole. Juvenile records are

strictly protected under state law, which provides that “[a]ll juvenile records shall be

17 withheld from public inspection and . . . may be examined only by order of the court.” N.C.

Gen. Stat. § 7B-3000(b) (2019). However, a few specified individuals, including the

juvenile and his attorney, may access the records without a court order. Id. Accordingly,

the government asked the witnesses’ attorneys for the records.

Counsel for each witness provided a juvenile delinquency worksheet, which is a

standardized form in North Carolina. See Worksheet Delinquency History Level, N.C. Jud.

Branch (Dec. 2019), https://www.nccourts.gov/assets/documents/forms/j469.pdf (saved as

ECF opinion attachment); see also, e.g., Matter of J.B., 809 S.E.2d 353, 357 n.2 (N.C. Ct.

App. 2018) (noting that “the delinquency history worksheet . . . tabulates the juvenile’s

prior history points” and relying on it for the juvenile’s delinquency history). It appears

that Cole’s counsel sent a worksheet that had been prepared for state-court purposes a few

months before the robbery and that the prosecution and defense in that case stipulated to

the validity of Cole’s juvenile criminal history as captured in the worksheet. By contrast,

Mitchell’s counsel completed a worksheet himself for purposes of complying with the

government’s request in this case.

Caldwell’s counsel raised concerns about the accuracy of the worksheets and about

the propriety of an attorney filling out such a worksheet in lieu of providing actual records.

In particular, defense counsel noted that Mitchell’s counsel must have had access to certain

undisclosed records in order to complete the worksheet. Accordingly, Caldwell asked the

court to order the witnesses to request copies of their juvenile records and provide them to

18 The court declined to do so, reasoning that Caldwell would be able to impeach the

witnesses using the worksheets. Indeed, defense counsel questioned Cole and Mitchell

about their criminal records and referred to their juvenile adjudications during closing

arguments. 11 Nevertheless, Caldwell appeals the district court’s denial of his request for an

order requiring Cole and Mitchell to obtain their juvenile records and provide them to

Caldwell for his use in impeaching their credibility.

Caldwell does not explain why he was entitled to such an order—a questionable

assertion in light of Federal Rule of Evidence 609(d)’s presumption against the

admissibility of evidence of juvenile adjudications and our deferential abuse-of-discretion

standard of review. See United States v. Mangual-Corchado, 139 F.3d 34, 43 n.23 (1st Cir.

1998). And even if the district court did err, Caldwell has not articulated why such an order

would have made any difference. While he asserts general concerns about the worksheets’

accuracy, he was indisputably provided with the relevant details of at least some of the

witnesses’ juvenile adjudications and was able to use them in his defense. Further, he was

able to otherwise impeach the credibility of Cole and Mitchell, including by noting

inconsistencies in their stories.

Because Caldwell has not articulated any reason why the district court’s decision

“affect[ed] the judgment,” we conclude that, even if the district court erred, such error was

harmless. Burfoot, 899 F.3d at 340; see United States v. Kelly, 510 F.3d 433, 439 (4th Cir.

11 Accordingly, Caldwell’s assertions on appeal that the district court did not allow him to impeach Cole and Mitchell with their juvenile records are without merit.

19 2007) (holding that even if the district court erred in excluding evidence of a witness’s

prior conviction, that error was harmless where “the defense thoroughly attacked [the

witness]’s credibility on a variety of other grounds,” such as by pointing out inconsistencies

in the witness’s testimony); United States v. Baxter, 54 F.3d 774, at *6 (4th Cir. 1995) (per

curiam) (unpublished table decision) (finding an abuse of discretion where the court

refused to permit questions related to the key government witness’s juvenile adjudication

but nevertheless concluding the error was harmless because the witness’s “credibility was

attacked on the stand despite the exclusion of the juvenile adjudication evidence” and there

was otherwise “overwhelming evidence of [the defendant’s] guilt”).

D.

Caldwell next argues that the district court erred when it ordered him to disclose his

private investigator’s notes, which were protected as work product. See United States v.

Nobles, 422 U.S. 225, 238–39 (1975) (holding that the work-product privilege protects an

attorney’s investigator’s notes compiled in preparation for trial). “We review evidentiary

rulings, including rulings on privilege, for abuse of discretion, factual findings as to

whether a privilege applies for clear error, and the application of legal principles de novo.”

United States v. Hamilton, 701 F.3d 404, 407 (4th Cir. 2012) (citation omitted).

Caldwell called his private investigator, Royetta Sieminski, as a witness to impeach

Mitchell’s testimony regarding a conversation that had occurred between Sieminski and

Mitchell. Caldwell alleges that the district court erroneously required him to disclose the

notes Sieminski took related to that conversation. Yet the record makes clear that the court

imposed no such requirement.

20 The government informed the district court that it had not “received any tangible

documents” from Sieminski. J.A. 1482. In response, defense counsel invoked the work-

product privilege to protect Sieminski’s notes. After reviewing the notes in camera, the

court asked for the parties’ views. During the ensuing discussion—and before the court

had made any ruling as to the claim of privilege—defense counsel agreed to send the notes

to the government. “[W]hen an attorney freely and voluntarily discloses the contents of

otherwise protected work product to someone with interests adverse to his or those of the

client, . . . he may be deemed to have waived work product protection.” In re Doe, 662

F.2d 1073, 1081 (4th Cir. 1981). Having dropped the argument for work-product privilege

before the district court, and having affirmatively agreed to voluntarily disclose the notes,

Caldwell is not now entitled to pursue such privilege here. Accordingly, we hold that

Caldwell waived his claim of work-product privilege. 12

E.

Next, citing Brady v. Maryland, 373 U.S. 83 (1963), Caldwell alleges that the

district court erred when it did not conduct an in camera review before denying his request

for certain Brady material, namely, the names and addresses of two individuals who spoke

to Cole during his police interview. 13 We disagree.

12 Further, even if Caldwell had not waived the privilege by voluntarily disclosing the notes, he waived protection of the notes “with respect to matters covered in [Sieminski’s] testimony” by choosing to call her as a witness. Nobles, 422 U.S. at 239. 13 In headings, his statement of issues, and an introductory sentence in his brief, Caldwell also argues that the district court erred in failing “to conduct an in camera review before denying his request for production of grand jury transcripts . . . and officers’

21 Brady requires “the disclosure [by the government] of evidence that is ‘both

favorable to the accused and material to guilt or punishment.’” United States v. Abdallah,

911 F.3d 201, 217 (4th Cir. 2018) (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 57

(1987)). “In reviewing the district court’s denial of [Caldwell]’s Brady motion, we review

the district court’s legal conclusions de novo and its factual findings for clear error.” Id.

(alterations omitted) (quoting United States v. King, 628 F.3d 693, 702 (4th Cir. 2011)).

Further, where a defendant “‘at least make[s] some plausible showing’” that the

particular information sought exists and that “it would be ‘both material and favorable to

his defense,’” he is “entitled . . . to have the information he has sufficiently identified

submitted to the trial court for in camera inspection and a properly reviewable judicial

determination made whether any portions meet the ‘material’ and ‘favorable’ requirements

for compulsory disclosure.” Love v. Johnson, 57 F.3d 1305, 1313 (4th Cir. 1995) (quoting

Ritchie, 480 U.S. at 58 n.15). But “[m]ere speculation that the information may be helpful

is insufficient to justify an in camera review.” United States v. Savage, 885 F.3d 212, 221

(4th Cir. 2018) (quoting United States v. Gilchrist, 119 F. App’x 485, 491 (4th Cir.) (per

curiam), partial reh’g granted on other grounds, 137 F. App’x 520 (4th Cir. 2005) (per

curiam)).

Caldwell sought the names and contact information of a man and a woman who

each, separately, entered the interrogation room during breaks in officers’ interrogations of

investigative notes.” Opening Br. at 45. As Caldwell has entirely failed to develop these arguments, he has waived them. See Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017).

22 Cole. Caldwell claims that these individuals pressured Cole to implicate Caldwell and fed

him information about Caldwell. At the time of the interview, Cole denied knowing

Caldwell. But, roughly six months later, he changed his tune and implicated Caldwell. The

government revealed that the individuals were Cole’s mother and her boyfriend, but

declined to provide their contact information.

Before the district court, Caldwell argued that he needed the contact information

because he did not know how Cole’s mother and her boyfriend had information about

Caldwell or “how or when/where law enforcement provided them with the information

allegedly about Caldwell that was used to attempt to induce Cole to cooperate with law

enforcement”; “what other [undisclosed] information these people or law enforcement

ha[d] about Mr. Caldwell”; and “what kind of pressure was put [on] Cole to change his

story” from not knowing Caldwell to naming Caldwell as the ringleader. J.A. 878–79.

Accordingly, in his view, the pair had “become material witnesses in this case” and were

“relevant in establishing the tactics used by the government in the investigation of this

matter”—those tactics being that the police fed information about Caldwell to Cole’s

mother and her boyfriend for use in pressuring Cole to implicate Caldwell. J.A. 879. The

district court denied the motion because “the government ha[d] advised that it [did] not

plan on calling those individuals in its case-in-chief.” 14 J.A. 897.

14 We note that, if the government had planned to call Cole’s mother or her boyfriend as a witness, their contact information would have been “nondiscoverable” pursuant to the district court’s discovery order, at least “absent a special showing of need.” Standard Criminal Discovery Order at 2, District Court Dkt. (May 5, 2017) (first quoting Fed. R. Crim. P. 16 advisory committee’s note to 1975 enactment); see United States v.

23 Caldwell has not made a plausible showing that the contact information he sought

was material and favorable to his defense, as required to entitle him to in camera inspection

of that information. Rather, he can only speculate as to what information interviews with

Cole’s mother and her boyfriend would have produced. For example, he argues that the

pair would have been able to speak to the police’s tactics in coaxing Cole to implicate

Caldwell. But, for all we know from the record, Cole’s mother and her boyfriend could

have had independent knowledge of Caldwell—perhaps obtained from Cole himself in

earlier, private conversations—that they relied on in speaking to him.

In other words, the fact that the two had knowledge of Caldwell does not necessarily

mean they obtained that information from the police in a concerted effort to pressure Cole.

Further, as noted, Cole did not implicate Caldwell until six months later. Accordingly,

Caldwell’s argument that the contact information was relevant because Cole’s mother and

her boyfriend would be able to shed light on police interview tactics “is pure speculation

lacking any specificity, and is insufficient to support a finding of materiality under Brady

or to require an in camera review.” 15 Savage, 885 F.3d at 222.

Jones, 469 F. App’x 175, 180 (4th Cir. 2012) (per curiam) (unpublished but orally argued) (“We have long held that defendants are ‘not entitled of right, in a non-capital case, to . . . pretrial disclosure[]’ [of the government’s witness list].” (alterations omitted) (quoting United States v. Anderson, 481 F.2d 685, 693 (4th Cir. 1973))). 15 We do not understand Caldwell to assert that Cole’s mother and her boyfriend were police informants, but rather that they could provide information to him about the police. To the extent he implies that they may have given information to the officers, however, the government was not required to disclose information about them. See United States v. Bell, 901 F.3d 455, 466–67 (4th Cir. 2018) (“[W]e have held . . . that the government is privileged to withhold the identity of an informant when he was a mere

24 Additionally, we note that it is unclear what benefit in camera review would have

had in a case such as this, where the district court could evaluate the value of the requested

material (contact information) without needing to actually review it. Simply put, Caldwell

has not articulated any reason why the specifics of the contact information (e.g., a precise

phone number or address) would alter the district court’s Brady analysis in this case. But,

in any event, Caldwell has failed to make a showing of materiality under either Brady or

the less onerous standard for in camera review. Id. Accordingly, the district court correctly

denied the motion.

F.

At the close of the government’s case, at the close of his own case, and again after

the jury verdict, Caldwell moved for a judgment of acquittal based on insufficiency of the

evidence pursuant to Federal Rule of Criminal Procedure 29. The district court summarily

denied the motions. We affirm.

“We review a challenge to the sufficiency of the evidence de novo, and we must

sustain the verdict if there is substantial evidence, viewed in the light most favorable to the

government, to support it.” United States v. Bran, 776 F.3d 276, 279 (4th Cir. 2015)

(citation omitted). “In undertaking this analysis,” we must bear in mind that “‘the jury, not

tipster[.]” (alterations and internal quotation marks omitted) (quoting United States v. Gray, 47 F.3d 1359, 1365 (4th Cir. 1995))); United States v. Smith, 780 F.2d 1102, 1107 (4th Cir. 1985) (en banc) (“Dual interests arise from nondisclosure of informers and the information they possess. First, the public interest is served by nondisclosure because it encourages persons to come forward with information that can aid effective law enforcement. Second, the safety and security of the person supplying the information is best protected by nondisclosure of his identity to those who may cause him harm.”).

25 the reviewing court, weighs the credibility of the evidence and resolves any conflicts in the

evidence presented.’” United States v. Ath, 951 F.3d 179, 185 (4th Cir.) (alterations

omitted) (quoting United States v. Palacios, 677 F.3d 234, 250 (4th Cir. 2012)), cert.

denied, 140 S. Ct. 2790 (2020).

Viewing the evidence in the light most favorable to the government, ample evidence

supported the verdict. Witness testimony supported that Cole and Mitchell entered the

bank, held the tellers at gunpoint, and made off with thousands of dollars in cash. Cole and

Mitchell testified that they did so at Caldwell’s direction and using guns he provided, and

that he drove them from the bank after the robbery. An officer who tracked the stolen cash

testified to having seen three individuals fleeing the getaway car on foot—not, as Caldwell

claimed, two individuals forcing a third to run with them by pushing and pulling on him.

Several officers testified to the fact that the police presence was quite obvious, and yet

Caldwell did not emerge seeking their help for a carjacking. Rather, an officer walked right

past Caldwell, who was well hidden in the brush—on top of a bag containing nearly all of

the stolen cash. Caldwell claimed that he had passed out from head injuries and only awoke

when the police dog bit him, which could explain why he did not seek police assistance.

Yet, other than his testimony, there is no evidence to support anything like the extensive

lacerations to his head that he described as a result of the alleged pistol-whipping. Instead,

after his arrest, he had only injuries to his arm from being bitten by the police dog as well

as some bruising to his left eye and a minor abrasion on his head. Finally, the vehicle he

was driving had a falsified temporary tag mounted on its rear in lieu of an actual license

plate, which was instead discovered on the back seat alongside a revolver. A second

26 revolver was located in the trunk. Considering all of this evidence, the jury was well within

its rights to return a guilty verdict on all counts.

Caldwell argues on appeal that there was no evidence to tie him to Cole and Mitchell

as a coconspirator, “other than their words and testimony at trial,” or to connect him with

the guns. Opening Br. at 56. Yet the jury was entitled to credit Cole and Mitchell’s

testimony that Caldwell planned the robbery and provided the guns, and to disbelieve

Caldwell’s competing testimony. See Kelly, 510 F.3d at 440 (“[W]e do not weigh the

evidence or assess the credibility of witnesses, but assume that the jury resolved any

discrepancies in favor of the government.”). Caldwell also argues that there is no evidence

that the guns found in his car were used in the robbery. But the jury was entitled to infer

that they were: Cole and Mitchell indisputably possessed two guns during the robbery; they

testified that Caldwell provided those guns; and two guns were located in the getaway

vehicle immediately after the robbery alongside dark clothing that Cole and Mitchell wore

in carrying out the robbery. Cf. United States v. Branch, 537 F.3d 328, 342–43 (4th Cir.

2008) (affirming the denial of a motion for judgment of acquittal on a charge of illegal

possession of a firearm by a felon where the defendant was driving a vehicle that contained

a concealed firearm, even though the defendant did not own the vehicle, given other

evidence suggesting he was aware of the vehicle’s contents).

Finally, Caldwell points to the lack of DNA or fingerprint evidence tying him to the

guns. But the jury could easily have concluded that Caldwell must have wiped down the

guns before providing them to Cole and Mitchell; that he avoided touching them directly,

such as by handling them with gloves; or that his DNA and fingerprints simply did not

27 transfer to the gun’s surfaces when he handled them, which evidence introduced before the

jury indicated was possible. Further, the lack of Caldwell’s DNA on the firearms also

undermined Caldwell’s version of events, in which Cole and Mitchell beat him bloody with

the guns.

Accordingly, we affirm the district court’s denial of Caldwell’s Rule 29 motions.

G.

Caldwell also raises two arguments for the first time on appeal, for which plain-

error review under Federal Rule of Criminal Procedure 52(b) applies. Greer v. United

States, 141 S. Ct. 2090, 2096 (2021) (citing United States v. Olano, 507 U.S. 725, 735

(1993)). To succeed in obtaining plain-error relief, a defendant must show (1) an error, (2)

that is plain, (3) and that affects substantial rights, “which generally means that there must

be ‘a reasonable probability that, but for the error, the outcome of the proceeding would

have been different.’” Id. (quoting Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904–

05 (2018)). If the defendant satisfies these “three threshold requirements,” we “may grant

relief if [we] conclude[] that the error had a serious effect on ‘the fairness, integrity or

public reputation of judicial proceedings.’” Id. at 2096–97 (quoting Rosales-Mireles, 138

S. Ct. at 1904). We sometimes refer to this final question as the fourth prong of the plain-

error test. E.g., United States v. Simmons, 999 F.3d 199, 227 (4th Cir. 2021).

Caldwell first points to the testimony of Diane Popichak, the government’s rebuttal

witness and a health services administrator at the jail where Caldwell was brought after his

arrest. She testified as a records keeper regarding the medical records from the jail; the

28 government did not seek to qualify her as a medical expert. Caldwell argues that her

testimony crossed the line into expert testimony and that this constituted plain error.

However, he does not point to specific testimony that he alleges constitutes error, and he

makes only cursory arguments with regard to the third and fourth prongs of the plain-error

analysis. We could, therefore, deem this argument waived for failure to develop it. See

Grayson O Co. v. Agadir Int’l LLC, 856 F.3d 307, 316 (4th Cir. 2017).

Regardless, even if Caldwell is correct that there was an error that was plain, he

would not be able to demonstrate that it affected his substantial rights—that is, that there

exists “a reasonable probability that, but for the error, the outcome of the proceeding would

have been different.” Greer, 141 S. Ct. at 2096.

Only a few items of Popichak’s testimony are possibly relevant to this challenge:

defining the word “abrasion” as a superficial injury; explaining that a “[t]ender scalp with

no clear focality” would mean “[t]hat there is no center point, origination point or contact

point for the wound”; and noting that there was nothing in the medical records consistent

with treatment “for being beaten with two heavy metal objects.” J.A. 1880, 1895, 1897.

But there is no reason to suppose that the jury would have returned a different verdict had

these snippets of testimony not been allowed. The records noted a one-centimeter abrasion

and a swollen left eye, but no other significant head injuries. Popichak testified that inmates

need to be declared fit for confinement before entering the jail, meaning that an inmate

presenting with significant injuries would need to be cleared by the hospital before the jail

would accept him—but no such preclearance was required in this case, suggesting the nurse

29 on duty did not find his injuries substantial. And the jury was able to view an image of

Caldwell from the night of his arrest and gauge for itself the severity of his injuries.

We conclude that, with or without Popichak’s explanations, the evidence was not

sufficient to support Caldwell’s account of a severe beating to his face and head with a

firearm that left him with blood “running down [his] face,” gave him “all kind[s] of gashes”

“all over [his] head,” “[d]id a lot of damage,” and caused him to pass out. J.A. 1684, 1696,

1720, 1734. While the jury need not have accepted Caldwell’s testimony on these points

in order to acquit him (if they believed, for example, that Cole and Mitchell carjacked him

with threats but that his claims of a beating were an exaggeration), the jury was certainly

entitled to consider the inconsistencies between his testimony and the other evidence in

weighing the validity of his testimony and returning a guilty verdict. Those inconsistencies

were apparent without Popichak’s challenged testimony. And, as noted above, significant

additional evidence pointed to his guilt. Caldwell thus cannot meet the heavy burden of

establishing entitlement to relief for plain error.

Finally, for the first time on appeal, Caldwell argues that he is entitled to relief under

the Supreme Court’s decisions in United States v. Davis, 139 S. Ct. 2319 (2019), and Rehaif

v. United States, 139 S. Ct. 2191 (2019). Both arguments are foreclosed by binding

precedent. 16

16 Because the Supreme Court issued its opinions in Davis and Rehaif after Caldwell filed his Opening Brief, we will exercise our discretion to excuse the fact that he did not raise arguments related to those opinions until his Reply Brief. See United States v.

30 a.

The jury found Caldwell guilty of Count III, possession of a firearm in furtherance

of a crime of violence, as prohibited by 18 U.S.C. § 924(c)(1)(A). The underlying crime of

violence was specified in the indictment and the jury instructions as Count II, aiding and

abetting bank robbery. 18 U.S.C. §§ 2, 2113(a), (d).

Section 924(c)(3) defines a “crime of violence” as a felony that “has as an element

the use, attempted use, or threatened use of physical force against the person or property

of another” (the “force clause”), or “that by its nature, involves a substantial risk that

physical force against the person or property of another may be used in the course of

committing the offense” (the “residual clause”). Id. § 924(c)(3)(A), (B). In Davis, the

Supreme Court struck down the residual clause as unconstitutionally vague. Davis, 139 S.

Ct. at 2324. However, convictions under the force clause remain valid. E.g., United States

v. Mathis, 932 F.3d 242, 263–64 (4th Cir. 2019).

This Court has held that bank robbery under either § 2113(a) or (d) is a crime of

violence under § 924(c)(3)’s force clause. United States v. McNeal, 818 F.3d 141, 157 (4th

Cir. 2016). Further, we have held that “aiding and abetting a crime of violence is also

categorically a crime of violence.” United States v. Ali, 991 F.3d 561, 574 (4th Cir. 2021)

(citing 18 U.S.C. § 2 and United States v. Ashley, 606 F.3d 135, 143 (4th Cir. 2010), and

Venable, 943 F.3d 187, 192 (4th Cir. 2019) (noting our discretion to excuse a party’s waiver of an argument). Any other arguments raised for the first time in his Reply Brief, however, we deem waived. See Grayson O Co., 856 F.3d at 316 (“A party waives an argument by failing to present it in its opening brief[.]”)

31 collecting cases); see also Johnson v. United States, 774 F. App’x 334, 335 (8th Cir. 2019)

(per curiam) (applying the same reasoning to a § 2113 aiding-and-abetting conviction).

Accordingly, Caldwell’s conviction for aiding and abetting § 2113 bank robbery can still

serve as a predicate for his § 924(c) conviction, even after Davis.

Caldwell was also convicted, in Count IV, of possessing a firearm as a convicted

felon. 18 U.S.C. § 922(g)(1). His indictment did not indicate, and the jury was not

instructed, that this charge required the government to prove that he knew he was a felon

at the time of the firearm possession. But in Rehaif, the Supreme Court concluded that to

obtain a § 922(g) conviction, the government “must show that the defendant knew he

possessed a firearm and also that he knew he had the relevant [felon] status when he

possessed it.” Rehaif, 139 S. Ct. at 2194 (emphasis added).

Still, plain-error review applies to unpreserved Rehaif errors such as this one. Greer,

141 S. Ct. at 2096. Caldwell can satisfy the first two prongs: there was an error, and it is

plain. Id. at 2097. But he cannot show that the Rehaif error affected his substantial rights.

Id. As the Supreme Court has noted, “[i]n a felon-in-possession case where the defendant

was in fact a felon when he possessed firearms, the defendant faces an uphill climb in trying

to satisfy the substantial-rights prong of the plain-error test based on an argument that he

did not know he was a felon. The reason is simple: If a person is a felon, he ordinarily

knows he is a felon.” Id.

Certainly, the mere undisputed fact that Caldwell was a felon at the time of the

robbery is not dispositive. “[T]here may be cases in which a defendant who is a felon can

32 make an adequate showing on appeal that he would have presented evidence in the district

court that he did not in fact know he was a felon when he possessed firearms.” Id. This

could occur, for example, where a defendant was previously convicted of “a crime

punishable by imprisonment for a term exceeding one year,” but was sentenced to a term

less than a year or to probation. 18 U.S.C. § 922(g)(1) (emphasis added). Such a defendant

may not have been aware of what punishments were permitted for his prior conviction, and

thus that he was considered a felon under § 922(g)(1). See Rehaif, 139 S. Ct. at 2198; Greer,

141 S. Ct. at 2103 (Sotomayor, J., concurring in part and dissenting in part) (noting this

and other possible reasons a defendant might be able to show he was not aware of his felon

status). “But if a defendant does not make such an argument or representation on appeal,

the appellate court will have no reason to believe that the defendant would have presented

such evidence to a jury, and thus no basis to conclude that there is a ‘reasonable probability’

that the outcome would have been different absent the Rehaif error.” Greer, 141 S. Ct. at

2097 (majority opinion). Caldwell has made no such argument here.

Moreover, the same factors that the Supreme Court found relevant in dismissing the

Rehaif challenge in Greer are present here. Before the date of the robbery, Caldwell “had

been convicted of multiple felonies.” Id. He has never disputed the validity of these felony

convictions, and indeed, he stipulated at trial to having had such a conviction. Id. at 2098.

We also note that Caldwell had, on several occasions, served sentences longer than a

year—including two stints of more than five years each in federal prison—making it

virtually impossible to believe he did not know he had been convicted of crimes punishable

33 by such sentences. Caldwell therefore has not demonstrated plain error with regard to his

§ 922(g) conviction.

III.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.