United States v. Hawkins

776 F.3d 200, 2015 WL 151610
Court of Appeals for the Fourth Circuit·Decided December 18, 2009·No. No. 08-4576·Published·Cited by 15 cases

Opinions

Affirmed in part, vacated in part, and remanded by published opinion. Judge AGEE wrote the opinion, in which Judge DAVIS joined. Judge MOTZ wrote an opinion concurring in the judgment.

AGEE, Circuit Judge:

Collin Hawkins was indicted on separate counts related to a carjacking and a subsequent arrest as a felon in possession of a firearm. Prior to trial, Hawkins timely moved the court to sever the carjacking counts from the felon in possession charge on the grounds of improper joinder. The district court denied the motion and Hawkins was found guilty by a jury on all counts. For the reasons that follow, we affirm the judgment of the district court, in part, and vacate the judgment, in part.

I.

Reuben King (“King”) testified that on the evening of November 22, 2006, he was employed as a driver for Sedan Service in Baltimore, Maryland. That night, King received a phone call from a regular customer he knew as Warren, asking to be picked up at an apartment complex parking lot. When King arrived three persons entered his cab: Warren, the appellant Hawkins, and an unidentified female. At trial, King testified that he instantly recognized Hawkins, who sat next to him on the cab’s front seat, from casual contact in the neighborhood over many years.

Warren instructed King that he needed to make three stops that night. During the first two stops, King explained that Warren got out of the car, talked to unidentified individuals for roughly ten to fifteen minutes, returned to the car, and then told King the intersection for the next stop. During the last stop, both Warren and Hawkins got out of the car for about ten or fifteen minutes, and then returned. Warren then instructed King to return to the apartment complex parking lot.

Once back in the parking lot King turned on the overhead dome light to calculate the fare and saw Hawkins holding a .357 caliber revolver only a few inches from his head, while Warren held a shotgun positioned to the back of King’s head. According to King, Warren stated that if King moved, Warren would shoot him. King claimed that Hawkins then took two cell phones and roughly $400 in cash from him, and pushed King out of the driver’s side door. Hawkins then pushed King in the direction of the trunk, during which time Hawkins emptied the remainder of King’s pockets while Warren kept the shotgun pointed at King. Once they reached the trunk area, King testified that Hawkins told King to kneel down and keep his hands up. According to King, after he complied with the instruction, Hawkins then stated, “I’m not going to shoot you ’cause I know you.” J.A. 108.

King claimed he then heard footsteps going toward the car, the car doors closing, and the car pulling off. King testified that he then ran until he found police officers to whom he reported the carjacking.

Shortly thereafter, King gave information about the carjacking to detectives and told them that Hawkins was involved. When shown a photo array King identified Hawkins as one of the perpetrators.

On December 9, 2006, Baltimore City police officers were investigating an unrelated incident in the same area of Baltimore, which they had reason to believe involved Hawkins. Acting on information that Hawkins would be arriving at a convenience store officers watched Hawkins [203]*203approach the entrance of the store and tug at his waistband, indicating that he might be armed.

Officers entered the store and ordered Hawkins to the ground, but he refused to comply and started to slide his right hand up under his waistband. This caused officers to order Hawkins to keep his hands where they could be seen, but Hawkins refused to comply until he was physically subdued. A .9 millimeter pistol was retrieved from Hawkins’ waistband when he was arrested.

On March 7, 2007, a federal grand jury in the District of Maryland indicted Hawkins on four counts. Count I alleged a carjacking based on the robbery of King’s vehicle, in violation of 18 U.S.C. § 2119 (2000). Count II alleged that Hawkins “did knowingly possess and brandish a firearm in furtherance of a crime of violence,” the carjacking, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). J.A. 7. Count III alleged that Hawkins, “having been convicted of a crime punishable by imprisonment for a term exceeding one year, did knowingly and unlawfully possess a loaded firearm, to wit: a Bersa model Thunder 9 mm pistol” in violation of 18 U.S.C. § 922(g)(1), the gun seized when he was arrested. J.A. 8. Count IV alleged another felon in possession of a firearm charge, relating to a shotgun seized during a search of Hawkins’ residence.

Prior to trial, Hawkins moved to sever Counts I and II (collectively the “carjacking counts”) from Counts III and IV. Hawkins contended that Counts III and IV were improperly joined to Counts I and II under Federal Rule of Criminal Procedure 8(a). J.A. 10. In the alternative, Hawkins argued severance was appropriate under Rule 14 because he “would be significantly prejudiced by a single trial” because “the jury may well conclude that Hawkins is guilty of one firearm count and then find him guilty of the others because of his criminal disposition.” J.A. 13. The district court denied Hawkins’ motion because it could “discern no reason why a jury will not be able fairly and objectively to evaluate the evidence.”1 J.A. 58.

The Government elected not to proceed on Count IV and trial was held only on Counts I, II, and III. Hawkins pled not guilty to all three counts. However, as to Count III, Hawkins conceded his prior felony conviction and his possession of the .9 millimeter handgun at the time of his arrest both to the court prior to opening statements and again to the jury during opening statements.2

During the trial, the Government introduced portions of a transcript and tape recording from Hawkins’ post arrest interview for possession of the .9 millimeter pistol at issue in Count III. However, the transcript and tape recording also contained two additional admissions Hawkins asked be redacted before publication to the jury.

First, Hawkins admitted during the interview that he supported himself by gambling and selling drugs. Hawkins objected to the admission of this statement based on lack of relevance to any contested issue in the case because he had, in effect, con[204]*204ceded his guilt as to Count III. Hawkins also argued that the statement constituted evidence of other crimes under Federal Rule of Evidence 404(b), and that the prejudice of the statement significantly outweighed the probative value, if any, the statement might have. The district court denied Hawkins’s motion to suppress the statement:

COURT: It makes it more likely, assuming Warren is selling drugs, assuming that somebody known to Mr. King as Warren was actually in that vehicle on November 22nd and went to east Baltimore and made these three stops that have been described, assuming all of that, then as you yourself have suggested to the jury, it tends to suggest that Warren is a drug dealer.

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United States v. Hawkins, 776 F.3d 200, 2015 WL 151610 (4th Cir. 2009).

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