United States v. Darrius Heuser-Whitaker

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 25, 2022
• Docket: 19-4837
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4837

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DARRIUS A. HEUSER-WHITAKER,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, Senior District Judge. (2:18-cr-00177-RAJ-LRL-4)

Submitted: July 8, 2022 Decided: July 25, 2022

Before NIEMEYER and AGEE, Circuit Judges, and FLOYD, Senior Circuit Judge.

Vacated and remanded in part, affirmed in part by unpublished per curiam opinion.

ON BRIEF: Laura P. Tayman, LAURA P. TAYMAN, PLLC, Newport News, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, Daniel T. Young, Assistant United States Attorney, Alexandria, Virginia, Kristin G. Bird, Special Assistant United States Attorney, John F. Butler, Assistant United States Attorney, Andrew Bosse, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 19-4837 Doc: 39 Filed: 07/25/2022 Pg: 2 of 7

PER CURIAM:

Darrius A. Heuser-Whitaker appeals from his jury convictions and the resultant 288-

month sentence imposed for conspiracy to interfere with commerce by means of robbery,

in violation of 18 U.S.C. § 1951(a); Hobbs Act robbery, in violation of 18 U.S.C. §§ 2,

1951(a), and brandishing a firearm during the robbery, in violation of 18 U.S.C. §§ 2,

924(c)(1)(A)(ii); and attempted Hobbs Act robbery, in violation of 18 U.S.C. §§ 2, 1951(a),

and discharging and brandishing a firearm during the attempted robbery, in violation of 18

U.S.C. §§ 2, 924(c)(1)(A)(iii) (“Count 7”). Heuser-Whitaker asserts that his § 924(c)

conviction for conduct charged in Count 7 is no longer valid after Johnson v. United States,

576 U.S. 591 (2015) (holding that the residual clause of the Armed Career Criminal Act,

18 U.S.C. § 924(e)(2)(b), is unconstitutionally vague), and United States v. Davis, 139 S.

Ct. 2319 (2019) (declaring that § 924(c)(3)(B) is unconstitutionally vague). Heuser-

Whitaker also challenges the validity of the district court’s decision to admit into evidence

copies of his jailhouse writings. We vacate the criminal judgment, in part, and affirm, in

part.

We agree with Heuser-Whitaker that his conviction on Count 7 is no longer valid.

Under federal law, a person who uses or carries a firearm “during and in relation to any

crime of violence” or who “possesses a firearm” “in furtherance of any such crime” may

be convicted of both the underlying “crime of violence” and the additional crime of

utilizing a firearm in connection with a “crime of violence.” 18 U.S.C. § 924(c)(1)(A).

Section 924(c)(3) defines “crime of violence” as “an offense that is a felony” and:

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(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) 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.

18 U.S.C. § 924(c)(3). “Courts typically refer to § 924(c)(3)(A) as the ‘force clause’ and

§ 924(c)(3)(B) as the ‘residual clause.’” United States v. Taylor, 979 F.3d 203, 206 (4th

Cir. 2020). “In view of the Supreme Court’s invalidation of the residual clause as

unconstitutionally vague, [Heuser-Whitaker’s] § 924(c) conviction may stand only if

attempted Hobbs Act robbery constitutes a ‘crime of violence’ under the force clause.” Id.

at 206-07 (citation omitted).

As we concluded in Taylor, attempted Hobbs Act robbery is not categorically a

crime of violence under § 924(c)’s force clause. Id. at 208-09 (holding that attempted

Hobbs Act robbery is no longer a “crime of violence” under § 924(c) “because the

defendant may commit [a] substantial step by such nonviolent means as passing a

threatening note to a store cashier or casing the store he intends to rob” (internal quotation

marks and brackets omitted)). The Supreme Court has confirmed this conclusion. United

States v. Taylor, 142 S. Ct. 2015 (2022). Taylor controls the outcome of Heuser-

Whitaker’s challenge to his § 924(c) conviction predicated on attempted Hobbs Act

robbery and we thus vacate his conviction on Count 7.

We nonetheless discern no error regarding the district court’s decision to admit into

evidence copies of Heuser-Whitaker’s jailhouse writings. We review a district court’s

evidentiary rulings for abuse of discretion. United States v. Webb, 965 F.3d 262, 266 (4th

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Cir. 2020). “A district court abuses its discretion when it acts arbitrarily or irrationally,

fails to consider judicially recognized factors constraining its exercise of discretion, relies

on erroneous factual or legal premises, or commits an error of law.” United States v.

Dillard, 891 F.3d 151, 158 (4th Cir. 2018) (internal quotation marks omitted).

Evidence is “relevant” if “it has any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable or less probable than it

would be without the evidence.” Fed. R. Evid. 401. Relevance “typically presents a low

barrier to admissibility.” United States v. Leftenant, 341 F.3d 338, 346 (4th Cir. 2003).

“Indeed, to be admissible, evidence need only be worth consideration by the jury, or have

a plus value.” Id. (internal quotation marks omitted).

A district court “may exclude relevant evidence if its probative value is substantially

outweighed by a danger of . . . unfair prejudice,” however. Fed. R. Evid. 403; see United

States v. Tillmon, 954 F.3d 628, 643 (4th Cir. 2019) (“Rule 403 states that a district court

may exclude relevant evidence if its probative value is substantially outweighed by a

danger of unfair prejudice or needlessly presenting cumulative evidence.” (cleaned up)).

“[W]hen considering whether evidence is unfairly prejudicial, damage to a defendant’s

case is not a basis for excluding probative evidence because evidence that is highly

probative invariably will be prejudicial to the defense.” Id. (internal quotation marks

omitted).

“Instead, unfair prejudice speaks to the capacity of some concededly relevant

evidence to lure the factfinder into declaring guilt on a ground different from proof specific

to the offense charged.” Id. (cleaned up). Thus, under Rule 403, relevant evidence is

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inadmissible where “there is a genuine risk that the emotions of the jury will be excited to

irrational behavior, and . . . this risk is disproportionate to the probative value of the offered

evidence.” Mullen v. Princess Anne Volunteer Fire Co., 853 F.2d 1130, 1134 (4th Cir.

1988) (internal quotation marks omitted). However, we “will not overturn a Rule 403

decision except under the most extraordinary of circumstances, where a trial court’s

discretion has been plainly abused.” Minter v. Wells Fargo Bank, N.A., 762 F.3d 339, 349-

50 (4th Cir. 2014) (internal quotation marks and brackets omitted).

In addition, Fed. R. Evid. “404(b)(1) prohibits evidence of a crime, wrong, or other

act from being used to prove a person’s character in order to show that on a particular

occasion the person acted in accordance with the character.” Webb, 965 F.3d at 266

(internal quotation marks omitted). “But Rule 404(b) does not affect the admission of

evidence that is intrinsic to the alleged crime.” Id. (internal quotation marks omitted).

“Instead, the rule is only applicable when the challenged evidence is extrinsic, that is,

separate from or unrelated to the charged offense.” United States v. Brizuela, 962 F.3d

784, 793 (4th Cir. 2020) (internal quotation marks omitted). “In contrast, acts that are a

part of . . . the alleged crime do not fall under Rule 404(b) limitations on admissible

evidence.’” Id. (internal quotation marks omitted). “Evidence of other bad acts is intrinsic

if, among other things, it involves the same series of transactions as the charged offense,

or if it is necessary to complete the story of the crime on trial.” Webb, 965 F.3d at 266

(cleaned up).

Because Heuser-Whitaker referenced conduct in his jailhouse writings that tended

to establish his involvement in the conduct for which he was on trial, the writings had high

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probative value. The jailhouse writings were thus relevant under Rule 401. Contrary to

Heuser-Whitaker’s argument on appeal, we find that the probative value of the writings

was not outweighed by any prejudice the evidence may have had on Heuser-Whitaker.

Admittedly, Heuser-Whitaker used the “N word” numerous times in the writings, which

appeared to be a rap compilation. And we have clearly recognized that “[t]estimony

concerning racial remarks is certain to be emotionally charged.” Mullen, 853 F.2d at 1134.

But the jury here was presented with heavily redacted writings in which Heuser-

Whitaker essentially made a de facto confession to a crime for which he was on trial. We

do not find that Heuser-Whitaker’s use of the “N word” in his own writings about a crime

he committed would “excite[]” the jury to “irrational behavior” and, thus, we find that any

prejudice created by the writings did not outweigh their high probative value. Id. (internal

quotation marks omitted).

Because the jailhouse writings were undoubtedly about the crimes with which

Heuser-Whitaker was charged, we further find the writings were intrinsic to the robbery

scheme and admissible without recourse to Rule 404(b). See United States v. Campbell,

963 F.3d 309, 317 (4th Cir. 2020) (“Rule 404(b) is limited to evidence of other crimes or

wrongs—not evidence of the charged offenses.”). It is also apparent that the Government

did not present the jailhouse writings for the sole purpose of demonstrating Heuser-

Whitaker’s bad character and, thus, we discern no error in the district court’s decision to

allow the writings’ admission at trial. Webb, 965 F.3d at 266 (“Where testimony is

admitted as to acts intrinsic to the crime charged, and is not admitted solely to demonstrate

bad character, it is admissible.” (cleaned up)).

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Accordingly, we vacate Heuser-Whitaker’s conviction on Count 7 and remand the

matter for resentencing. See Taylor, 979 F.3d at 210; see also United States v. Ventura,

864 F.3d 301, 309 (4th Cir. 2017) (holding that, under the sentencing package doctrine, “if

some counts [of a multicount criminal judgment] are vacated, the judge should be free to

review the efficacy of what remains in light of the original [sentencing] plan” (internal

quotation marks omitted)). We affirm the remainder of the criminal judgment against

Heuser-Whitaker. We dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before this court and argument would not aid the

decisional process.

VACATED AND REMANDED IN PART, AFFIRMED IN PART