United States v. Lance Cannon

987 F.3d 924

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 3, 2021
• Docket: 16-16194
• Status: Published

Opinion

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 16-16194 ________________________

D.C. Docket No. 1:15-cr-20923-UU-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LANCE CANNON, VINCENT HOLTON, Defendants-Appellants.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(February 3, 2021)

Before WILLIAM PRYOR, Chief Judge, HULL and MARCUS, Circuit Judges.

HULL, Circuit Judge:

After a jury trial, Lance Cannon and Vincent Holton appeal their convictions

for conspiracy to commit Hobbs Act robbery, conspiracy to possess with intent to USCA11 Case: 16-16194 Date Filed: 02/03/2021 Page: 2 of 47

distribute cocaine, using and carrying a firearm during a crime of violence and a

drug trafficking crime, and possession of a firearm by a convicted felon. Cannon

and Holton, bringing guns with them, participated in a plan to rob a stash house

containing 18 kilograms of cocaine. As it turns out, one participant was an

undercover detective and the stash house was fake. On appeal, Cannon and Holton

raise multiple issues as to their convictions. After careful review, and with the

benefit of oral argument, we affirm.

I. FACTS

The trial evidence included witness testimony as well as audio, and in some

cases video, recordings of seven meetings as detailed below.

A. June and July 2015 Meetings

The Drug Enforcement Administration (“DEA”) encountered Cannon and

Holton through its investigation of a target named Owen Nunez. The DEA opened

its investigation into Nunez based on information supplied by a confidential

informant (“CI”) named Miguel Gonzalez, who knew Nunez was a drug dealer.

Gonzalez had prior felony convictions, made a living as a CI, and worked for

multiple federal law enforcement agencies.

The DEA arranged for the CI to meet Nunez on June 22, 2015, to discuss

future drug transactions. On his own initiative, Nunez invited two other

individuals—Cannon and an unknown associate. During the meeting, Cannon

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discussed with the CI Gonzalez the potential sale of 30 kilograms of cocaine at a

price of $28,000 per kilogram. Cannon offered the CI the opportunity to sample

the product.

On June 24, 2015, Nunez, Cannon, and the CI Gonzalez met again to discuss

the drug deal. This time, Cannon brought Holton with him. Cannon introduced

Holton as someone who could transport drugs for the CI if needed, stating,

“wherever you want it to go, he drives.” Cannon also told the CI: “Anything let

me tell you something you ever need . . . come, come to me.” Cannon indicated he

was talking about transportation. Cannon also said that the CI could come to him

if anybody ever “play[ed] with [him]”—that is, interfered with his drug dealings—

or was “fucking with [his] shit.” Cannon confirmed that the cocaine price was

$28,000 per kilogram.

On July 16, 2015, the CI met again with Nunez, Cannon, and Holton. The

CI asked Cannon and Holton for a one-kilogram sample of the cocaine prior to the

deal because the CI was going to be carrying so much money and wanted to “feel

. . . safe.” Holton offered to bring “everything to . . . the place,” but the CI

indicated he just wanted a one-kilogram sample. Later, Cannon and Holton had to

“do the math” on 30 kilograms of cocaine at $28,000 per kilogram, which came

out to $840,000. After Cannon and Holton left the meeting, the CI told Nunez

“these people are liars” and said he had a “bad feeling” about the transaction.

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After the third meeting, the DEA stopped investigating Cannon and Holton

based on “red flags” indicating they were going to rob the CI. One red flag was

that Cannon and Holton did not seem to know how much money they were to

receive as a result of the drug deal.

B. October 23 and 28, 2015 Meetings

Subsequently, the Bureau of Alcohol, Tobacco, Firearms and Explosives

(“ATF”) took over the investigation from the DEA. The CI informed the ATF that

Cannon was interested in committing a home invasion robbery for drugs. The CI

had placed a series of recorded phone calls to Cannon and prefaced some by noting

for law enforcement that the ensuing call would concern a cocaine robbery.

During the calls, however, the CI did not specifically mention a robbery to

Cannon. Instead, the CI referred to the need to talk soon about a potential job and

the possibility of working together.

After receiving the CI’s tip that Cannon was interested in committing a

robbery, the ATF arranged for a meeting on October 23, 2015, between Cannon,

the CI, and Kenneth Veloz—an undercover (“UC”) detective with the Miami-Dade

Police Department and ATF task force officer. The October 23 meeting took place

in a restaurant parking lot. The CI introduced the UC detective to Cannon as his

godson. The UC presented himself as a disgruntled drug courier who was not

being paid what he was owed. The UC proposed to Cannon stealing 10 to 20

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kilograms of cocaine from his employers’ stash house. Cannon said he had a

“team” that could assist with the job.

The UC detective informed Cannon that at least one of the stash house

guards was “always strapped,” or armed, and warned Cannon that guns would be

involved. Cannon discussed with the CI the need to meet after the robbery to split

up the stolen cocaine. When the UC detective expressed concern that the stash

house guards would not “give up just like that,” Cannon promised the UC that the

guards were going to “lay the fuck down . . . [o]ne way or another.” The UC asked

Cannon if he had the “gear,” meaning the weapons and equipment necessary to do

the robbery, and Cannon told him not to worry.

On October 28, 2015, Cannon met again with the CI Gonzalez and the UC

detective. Holton also attended. The UC detective explained that his employers

were paying him only half of what he was owed. Holton then asked why he had

waited so long to rob them. Holton suggested that the robbery would look better

and go more smoothly if the UC was “tak[en] down too,” as if he was one of the

guards.

Holton asked whether the guard who would open the door for the UC

detective would be “strapped.” The UC responded that it depended, but that this

individual would not have a weapon in his hand. Holton said that if the individual

reached for a weapon, he and Cannon would have to protect each other’s lives, but

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that he would prefer to “keep it clean” and “leave smelling like a rose.” Holton

also expressed that this was not a new situation for him and that he had more than

20 years’ experience.

Later, the UC detective indicated that Cannon and Holton should tell him if

the robbery was something they could not handle. Holton responded that it was a

“simple job” because the UC had “inside info.” Holton also said it was an “easy”

job but only if it was “worth it,” and he asked the UC what “the take” was. The

UC told him there would be 10 to 20 kilograms of high-quality, pure cocaine.

The parties then discussed certain logistics. Holton told the UC detective he

would need to give him a sign when it was time to rush the door. The UC

indicated he would put his glasses up. Holton said he would enter first and throw

the UC out of the way, with Cannon following behind. Cannon added that he

would aim his gun at the UC. The UC offered to provide Cannon and Holton a van

with a trap door in it. Holton suggested that he and Cannon arrive at the robbery

dressed as DEA agents and that this was “the best way to do it.” Holton later

asked the UC if he had any “clean tools”—guns not previously used in a crime.

The UC said he did not deal with guns, to which Holton responded, “[w]e got it.”

Holton indicated that after the robbery he wanted to quickly unload the

stolen cocaine and dump his gun. Cannon told the UC: “[T]he only thing my mind

[is] focused on, is making sure you go in smelling like a rose and you come out

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[the same]—that’s my job.” Cannon said that he and Holton would “take care of

everything else.” Cannon and Holton added that if the UC at any point felt

threatened, they would “just go ahead and handle that problem.”

C. November 5, 2015 Meeting

On November 5, 2015, Cannon, Holton, the CI, and the UC detective met

again and continued going over the logistics of the robbery. Holton indicated that

he and Cannon might want to use the van the UC had proposed. Holton discussed

with the UC the possibility that there might be more drugs in the stash house than

the UC planned to pick up from his employers. If that was the case, Holton said,

they were going to “take all of that shit,” but split everything fifty-fifty with the

UC. The UC again indicated that at least one guard would be armed. Cannon

responded they would take it as if everyone was “strapped.” The UC asked

Cannon and Holton if they were good with the plan and said it was “no sweat” if

they could not handle it. Holton laughed and said if things did not look good, they

would let the UC go about his business.

Holton then stated that he and Cannon would wait in a “blind spot” while the

UC went to the door of the stash house. Holton and Cannon would then quickly

follow behind. Holton said that they were going to tie up the guards—and the UC,

Cannon added—and take their guns and car keys. Cannon and Holton would do a

thorough search of the stash house to make sure they did not miss any cash or

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drugs. Holton later stated, “sooner or later I’m [going to] retire from this shit.”

Holton also mentioned possibly bringing a third person, a driver, along to the

robbery.

D. November 13, 2015 Robbery

On November 13, 2015, the day the robbery was to occur, Cannon, Holton

and an individual named Nathaniel Stubbs met with the CI a final time. The UC

detective was not present. The CI confirmed there would be 18 kilograms of

cocaine in the stash house. The CI offered to take the guns that Cannon and

Holton had brought with them and put them in his vehicle. But Cannon and

Holton declined the CI’s offer. Cannon, Holton, and Stubbs then followed the CI

in a pickup truck to a warehouse to retrieve the van and proceed to the stash house.

Upon their arrival at this second location, Cannon, Holton, and Stubbs were

arrested. Two firearms—an AK-47 style rifle and AK-47 style pistol—along with

ammunition and latex gloves were later recovered from Cannon and Holton’s

pickup truck.

II. PROCEDURAL HISTORY

A. Indictment

A federal grand jury returned an indictment against Cannon and Holton,

charging them with: (1) conspiracy to commit Hobbs Act robbery, in violation of

18 U.S.C. § 1951(a) (Count 1); (2) conspiracy to possess with intent to distribute

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five or more kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846

(Count 2); (3) knowingly using and carrying a firearm during and in relation to a

crime of violence, as set forth in Count 1, and during and in relation to a drug

trafficking crime, as set forth in Count 2, in violation of 18 U.S.C. §§ 924(c)(1)(A)

and 2 (Count 3); and (4) possession of a firearm by a convicted felon, in violation

of 18 U.S.C. § 922(g)(1) (Count 4 as to Cannon, Count 5 as to Holton).1

B. Pretrial Motions

In 2016, Cannon and Holton jointly filed pretrial motions. First, they filed a

discovery motion. They contended that the ATF and Federal Bureau of

Investigation (“FBI”) targeted persons of color in phony stash house rip offs and

this resulted in the U.S. Attorney’s Office for the Southern District of Florida

“selectively prosecut[ing]” persons of color. Cannon and Holton sought, inter alia,

a list of fake stash house robbery cases brought by that particular U.S. Attorney’s

Office going back ten years, with each defendant’s race.

Second, Cannon and Holton filed a motion to dismiss the indictment based

on the government’s outrageous conduct in creating the fake robbery scheme, in

violation of the Fifth Amendment’s Due Process Clause.

1 Stubbs was also indicted but later pled guilty and is not a party to this appeal. Stubbs’s participation in pretrial proceedings is omitted from the procedural history.

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Third, Cannon and Holton filed a motion to dismiss the § 924(c) firearm

charge in Count 3 to the extent it was based on the predicate offense of conspiracy

to commit Hobbs Act robbery. They claimed that Hobbs Act robbery was not a

crime of violence under § 924(c)(3)(A)’s elements clause and based on Johnson v.

United States, 576 U.S. 591, 597–98, 606, 135 S. Ct. 2551, 2557–58, 2563 (2015),

which held that § 924(e)(2)(B)(ii)’s residual clause was unconstitutionally vague.

After a hearing and reviewing some of the recorded meetings, the magistrate

judge issued a written report and recommendation (the “Report”). The Report

recommended the denial of the motion to dismiss as to the creation of the robbery

scheme because Cannon and Holton had not established outrageous government

conduct. The magistrate judge found that the recorded meetings and “undisputed

facts regarding the subsequent events” showed that: (1) Cannon and Holton

exhibited a predisposition to engage in illegal drug transactions; (2) Cannon

showed a predisposition for violence when he told the CI to come to him if anyone

was “fucking with [his] shit”; (3) neither Cannon nor Holton were initially

recruited by the government; (4) Cannon and Holton were offered the opportunity

to withdraw from the stash house robbery but declined; and (5) Cannon and Holton

were prepared to participate in the robbery by bringing weapons and other

equipment to the predetermined meeting location.

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To the extent the motion to dismiss was based on racial profiling, however,

the Report recommended that it be held in abeyance pending the district court’s

ruling on the related discovery motion. The magistrate judge also recommended

denying the motion to dismiss Count 3 because Hobbs Act robbery qualified as a

crime of violence under § 924(c)(3)(B)’s elements clause.

C. District Court’s Orders

During a calendar call on April 27, 2018, the district court addressed pretrial

matters and denied the defendants’ discovery motion. Later, the district court

entered an order: (1) adopting the Report; (2) denying the motion to dismiss, to the

extent it was based on the government’s creating the robbery scheme; and (3)

denying the motion to dismiss the Hobbs Act robbery conspiracy predicate in

Count 3. In a separate order, the court denied the motion to dismiss, to the extent it

was based on the alleged targeting of minorities, and denied the amended motion

for discovery.2

D. Trial and Verdict

At trial, the government’s four witnesses were: (1) Joseph Bryson, the DEA

agent who worked as the CI’s handler and arranged the meetings between the CI

and Nunez; (2) Kenneth Veloz, the UC detective who participated in the meetings

2 The amended discovery motion differed only in that Cannon and Holton narrowed certain discovery requests.

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about the stash house robbery; (3) Miguel Gonzalez, the CI; and (4) Adrian Halley,

a criminal investigator and ATF special agent, who collected the evidence from the

defendants’ truck at the time of arrest.

The government also introduced the audio and video recordings and written

transcripts of all seven in-person meetings. Bryson, Veloz, and Gonzalez testified

as to the meaning of certain phrases and terminology and described what was

taking place during the recordings.

DEA agent Bryson also testified how the investigation of Nunez had led to

Cannon and Holton, who were initially unknown to law enforcement. Bryson

explained that the DEA eventually stopped investigating Cannon and Holton

because it believed they were going to rob the CI Gonzalez.

During his testimony, UC detective Veloz repeatedly mentioned how he had

set out to “paint a violent situation” in describing the stash house robbery to

Cannon and Holton, to test whether they had “the desire and the will” to go

through with the plan. Veloz testified that: (1) he offered Cannon and Holton

several opportunities to opt out of the plan; (2) he did not offer to provide any

guns; and (3) the fact Cannon and Holton contemplated bringing a third person to

the robbery demonstrated that they, on their own, were actively planning the

robbery. On cross-examination, Veloz admitted that he created the stash house

robbery scenario, including the armed guards and the amount of cocaine involved,

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but not the crime itself. To further show intent, the government introduced

Cannon’s 2002 drug conviction and Holton’s 1993 drug conviction.

Gonzalez testified about the meetings, his background as a CI, and how he

earned money in this role. On cross-examination, Gonzalez admitted that it was

his idea to present the idea of a stash house robbery to law enforcement because

Cannon previously told him that he could “do anything” the CI needed.

Halley, the ATF investigator, testified as to the gloves, firearms,

ammunition, and other items recovered from Cannon and Holton’s truck.

On the second day of trial, the district court learned that a juror—Tameka

Spicer—knew Holton’s wife. Spicer explained that she knew Holton’s wife

because Spicer did her hair “pretty often.” Spicer stated that they never discussed

Holton or the case and that her ability to be fair and impartial would not be

affected. After hearing the parties’ arguments, the court dismissed Spicer because

of her financial relationship to Holton’s wife.

After the government rested, Cannon and Holton moved for a judgment of

acquittal, which the district court denied. Cannon and Holton did not present any

evidence.

The district court also denied Cannon and Holton’s request for an

entrapment instruction. The court did give a “theory of defense instruction,” that:

(1) each defendant claimed he did not possess willful intent to commit a crime; (2)

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willfulness or knowledge is an element of each crime; and (3) if a defendant did

not possess the requisite willful intent to commit a crime, or “you have a

reasonable doubt” about whether the defendant had the required intent and

willfulness to commit a crime, “you must find the Defendant not guilty.”

The jury found Cannon and Holton guilty on all counts. Later, the district

court denied Holton’s motion for a new trial.

E. Sentencing

The district court sentenced both Cannon and Holton to: (1) 240 months’

imprisonment on the Hobbs Act robbery conspiracy conviction (Count 1) and drug

conspiracy conviction (Count 2), to run concurrently; (2) 120 months’

imprisonment on the felon in possession convictions (Count 4 for Cannon and

Count 5 for Holton), to run concurrently; and (3) a consecutive 60 months’

imprisonment on their § 924(c) firearm convictions (Count 3). This appeal

followed.

III. DISCOVERY MOTION

On appeal, Holton argues that the district court erred in denying his motion

for discovery as to his selective prosecution claim.3 Our consideration of Holton’s

discovery motion as to his selective prosecution claim is governed by well-settled

3 We review the denial of discovery on a selective prosecution claim for an abuse of discretion. See United States v. Jordan, 635 F.3d 1181, 1185 (11th Cir. 2011).

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and binding precedent in United States v. Armstrong, 517 U.S. 456, 116 S. Ct.

1480 (1996), and United States v. Jordan, 635 F.3d 1181 (11th Cir. 2011).

Federal prosecutors have “broad discretion” in enforcing criminal laws and a

“presumption of regularity” attaches to their prosecutorial decisions. Armstrong,

517 U.S. at 464, 116 S. Ct. at 1486 (quotation marks omitted). Federal prosecutors

have such latitude because they fall within a “special province” of the executive

branch and must assist in ensuring the faithful execution of the nation’s laws. See

id. (quotation marks omitted).

Nevertheless, prosecutorial discretion is subject to “constitutional

constraints.” Id. (quotation marks omitted). “One of these constraints, imposed by

the equal protection component of the Due Process Clause of the Fifth

Amendment, is that the decision whether to prosecute may not be based on an

unjustifiable standard such as race, religion, or other arbitrary classification.” Id.

(citations and quotation marks omitted).

Because of the presumption of regularity, a defendant who seeks to establish

a claim of selective prosecution in violation of the Constitution carries a

“demanding” burden. United States v. Smith, 231 F.3d 800, 807 (11th Cir. 2000)

(quoting Armstrong, 517 U.S. at 463, 116 S. Ct. at 1486); Jordan, 635 F.3d at

1188. “[T]o dispel the presumption that a prosecutor has not violated equal

protection, a criminal defendant must present clear evidence to the contrary.”

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Smith, 231 F.3d at 807 (emphasis omitted) (quoting Armstrong, 517 U.S. at 465,

116 S. Ct. at 1486); Jordan, 635 F.3d at 1188. This requires a showing “that the

federal prosecutorial policy had a discriminatory effect and that it was motivated

by a discriminatory purpose.” Smith, 231 F.3d at 808 (quoting Armstrong, 517

U.S. at 465, 116 S. Ct. at 1487); Jordan, 635 F.3d at 1188.

Discovery on a selective prosecution claim is subject to “a correspondingly

rigorous standard.” Armstrong, 517 U.S. at 468, 116 S. Ct. at 1488. It requires a

defendant to produce “some evidence tending to show the existence of the essential

elements” of a selective prosecution claim—discriminatory effect and

discriminatory purpose. Jordan, 635 F.3d at 1188–89 (quoting Armstrong, 517

U.S. at 468, 116 S. Ct. at 1488) (concluding defendant was not entitled to

discovery on selective prosecution claim under Armstrong); United States v.

Quinn, 123 F.3d 1415, 1425–26 (11th Cir. 1997) (same). To establish

discriminatory purpose, a defendant must show the decisionmaker “selected or

reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in

spite of,’ its adverse effects upon an identifiable group.” Jordan, 635 F.3d at 1188

(quoting Wayte v. United States, 470 U.S. 598, 610, 105 S. Ct. 1524, 1532 (1985)).

To establish discriminatory effect in a race-based selective prosecution

claim, the defendant “must show that similarly situated individuals of a different

race were not prosecuted.” Smith, 231 F.3d at 808 (quoting Armstrong, 517 U.S.

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at 465, 116 S. Ct. at 1487); Jordan, 635 F.3d at 1188. A “similarly situated”

person in the selective prosecution analysis is one who engaged in the same type of

conduct as the defendant “and against whom the evidence was as strong or stronger

than against the defendant.” Smith, 231 F.3d at 810–11 (affirming the denial of

motion to dismiss based on selective prosecution where defendants failed to

identify similarly situated comparators who engaged in the same type and quantity

of voting crimes); United States v. Brantley, 803 F.3d 1265, 1271–73 (11th Cir.

2015) (affirming the denial of motion to dismiss based on selective prosecution

where sole comparator’s conduct was materially different from defendant’s).

Statistical data reflecting the treatment of only one particular group cannot

satisfy the discriminatory effect prong because it fails to show that similarly

situated persons were treated differently. For example, in Jordan, this Court

affirmed the denial of discovery and an evidentiary hearing on a selective

prosecution claim where the defendant’s statistics showed that “approximately

93%” of Armed Career Criminal Act (“ACCA”) prosecutions in the Northern

District of Georgia were against African Americans, but failed to “include the

criminal histories of the other defendants.” 635 F.3d at 1189. This Court

explained that because the statistics did not touch on the criminal histories of other

defendants who were not prosecuted, they were “not probative of the ‘similarly

situated’ inquiry of the discriminatory effect test.” Id. We pointed out that

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“Jordan did not show that a single arrestee who was not prosecuted under the

ACCA qualified for such prosecution, much less possessed a criminal history as

substantial as his own.” Id. Therefore, we concluded that Jordan failed to present

“‘some’ evidence tending to establish selective prosecution, much less facts

sufficient to create a reasonable doubt about the constitutionality of his

prosecution.” Id. (quotation marks omitted).

The same was true in Armstrong. There, the Supreme Court held that

defendants were not entitled to discovery as to selective prosecution where the

defendants provided an affidavit from the Federal Public Defender’s office, which

said that in all of the 24 relevant cases it had handled in a particular year, all

defendants had been black. Armstrong, 517 U.S. at 459, 116 S. Ct. at 1483. This

was not sufficient to allow for discovery because the evidence “failed to identify

individuals who were not black and could have been prosecuted for the offenses

for which respondents were charged, but were not so prosecuted.” Id. at 470, 116

S. Ct. at 1489 (emphasis added).

So too here. Nothing about the evidence that defendants have offered is

distinguishable from Armstrong or Jordan. Here, the defendants failed to proffer

evidence of discriminatory effect. See Armstrong, 517 U.S. at 470, 116 S. Ct. at

1489; Jordan, 635 F.3d at 1188–89. The only evidence that Cannon and Holton

proffered in support of the discovery motion was: (1) a USA Today article

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reporting that “[a]t least 91% of the people agents have locked up” as a result of

stash house stings were racial or ethnic minorities and (2) data from the Federal

Public Defender’s Miami office showing that out of the 60 cases involving a stash

house that the office had handled since 2001, all 87 defendants were either black or

Hispanic in 25 cases that employed the same “disgruntled drug courier” scenario as

this case.

Under Armstrong and Jordan, this statistical evidence fails to establish

discriminatory effect because it does not demonstrate that similarly situated

defendants of other races could have been prosecuted for the same offenses but

were not. See Armstrong, 517 U.S. at 470, 116 S. Ct. at 1489; Jordan, 635 F.3d at

1188–89. The USA Today article and statistics from the Federal Public Defender’s

office in Miami say nothing about whether the government declined to prosecute

similarly situated non-minority individuals in reverse stash house stings.

Furthermore, the statistics from the Federal Public Defender’s Miami office cover

25 of the 60 stash house cases that office handled within that district. Even if those

25 cases represent every reverse stash house sting out of the 60 cases, these

statistics do not include similar cases in the district not handled by the Federal

Public Defender’s Miami office—they represent only a “fraction of the total

number of prosecutions,” as the government puts it. And even if they did represent

every similar case in the district, the statistics would still tell us nothing about

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similarly situated non-minority individuals. Simply put, telling the court how

many minorities have been prosecuted does nothing to prove how many non-

minorities have not been. And that similarly situated showing is plainly required

under Supreme Court precedent and our own precedent to proceed to discovery.

See Armstrong, 517 U.S. at 468, 116 S. Ct. at 1488; Jordan, 635 F.3d at 1188.

Because defendants failed to establish discriminatory effect, we need not

address discriminatory purpose. In any event, there is no evidence of

discriminatory purpose. Law enforcement did not initially target Cannon and

Holton. Instead, they came to law enforcement’s attention through the DEA’s

investigation of Owen Nunez, a drug dealer who brought Cannon to a meeting, and

then Cannon brought Holton to a later meeting. The ATF continued the

investigation only after Cannon had offered to assist the CI in the future if he

needed.

For all these reasons, the district court did not abuse its discretion in denying

the defendants’ motion for discovery on the claim of selective prosecution.

Before concluding this issue, we recognize that Holton’s discovery motion

sought information not only from the U.S. Attorney’s Office for the Southern

District of Florida about the prosecution of racial minorities in fake stash house

cases, but also from the ATF and FBI about how defendants were selected or

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targeted for investigation in such cases. Holton’s motion, however, referred to

only “selective prosecution” and never “selective enforcement.”

Similarly, on appeal, Holton used only the term “selective prosecution” in

his opening and reply briefs. Holton used the term “selective enforcement” for the

first time in this Court in his Rule 28(j) letter. Even assuming arguendo that

Holton adequately raised the issue in the district court, he abandoned it on appeal.

See United States v. Levy, 416 F.3d 1273, 1275–76 (11th Cir. 2005) (providing

that issues not raised in opening brief are abandoned); United States v. Jernigan,

341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (stating that “a party seeking to raise a

claim or issue on appeal must plainly and prominently so indicate,” even if issue

was preserved at trial).

IV. MULTIPLICITOUS INDICTMENT

Holton argues, for the first time on appeal, that the indictment was

multiplicitous. 4 Holton contends he was improperly charged with two

conspiracies—one to commit Hobbs Act robbery in Count 1 and another to possess

with intent to distribute cocaine in Count 2—when only a single conspiracy

occurred.

4 We review this issue for plain error, which requires (1) an error, (2) that is plain, and (3) that affects substantial rights. See United States v. Gonzalez, 834 F.3d 1206, 1217–18 (11th Cir. 2016). If these conditions are meet, we may exercise our discretion to correct the error, but only if the error “seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings.” Id. at 1218 (quotation marks omitted).

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The Double Jeopardy Clause prohibits multiple punishments for the same

offense. United States v. Bobb, 577 F.3d 1366, 1371 (11th Cir. 2009). A

multiplicitous indictment, which “charges a single offense in more than one

count,” violates double jeopardy principles “because it gives the jury numerous

opportunities to convict the defendant for the same offense.” United States v.

Williams, 527 F.3d 1235, 1241 (11th Cir. 2008).

“Where the same conduct violates two statutory provisions, the first step in

the double jeopardy analysis is to determine whether the legislature . . . intended

that each violation be a separate offense.” United States v. Davis, 854 F.3d 1276,

1286 (11th Cir. 2017) (quotation marks omitted). If congressional intent is

unclear, we apply the Supreme Court’s test set forth in Blockburger v. United

States, 284 U.S. 299, 52 S. Ct. 180 (1932). Davis, 854 F.3d at 1286. Under

Blockburger, “the test to be applied to determine whether there are two offenses or

only one, is whether each provision requires proof of a fact which the other does

not.” Blockburger, 284 U.S. at 304, 52 S. Ct. at 182. In applying the Blockburger

test, we examine only the elements of each offense, except in “a few specific

circumstances” that are not present here. See United States v. Hassoun, 476 F.3d

1181, 1186–87 (11th Cir. 2007); see also Williams, 527 F.3d at 1240.

Here, Holton failed to show that the indictment was multiplicitous. Neither

Holton nor the government identifies anything in the conspiracy statutes or their

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legislative histories that speaks to Congress’s intent to authorize separate and

cumulative punishments. We therefore compare the elements of the two offenses.

See Davis, 854 F.3d at 1286.

Doing so, we easily conclude the two conspiracy offenses have separate

elements. Conspiracy to commit Hobbs Act robbery requires proof that: “(1) two

or more persons agreed to commit a robbery encompassed within the Hobbs Act,”

which prohibits robberies that affect interstate commerce; (2) “the defendant knew

of the conspiratorial goal; and (3) the defendant voluntarily participated in helping

to accomplish the goal.” United States v. Hano, 922 F.3d 1272, 1294 (11th Cir.),

cert. denied, ___ U.S. ___, 140 S. Ct. 488 (2019). In contrast, conspiracy to

possess with intent to distribute cocaine requires proof that: (1) “an illegal

agreement existed to possess with the intent to distribute cocaine;” (2) the

defendant knew of the agreement; and (3) the defendant knowingly and voluntarily

joined the agreement. United States v. Charles, 313 F.3d 1278, 1284 (11th Cir.

2002) (emphasis omitted). Because each conspiracy requires “proof of a fact

which the other does not”—namely, a distinct type of agreement—the Blockburger

test is satisfied, and the indictment is not multiplicitous. See Blockburger, 284

U.S. at 304, 52 S. Ct. at 182. Holton has shown no error, much less plain error.

Holton argues that allowing multiple conspiracy prosecutions to stem from a

single agreement is contrary to Braverman v. United States, 317 U.S. 49, 63 S. Ct.

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99 (1942), but that case is materially different. In Braverman, the Supreme Court

held that an agreement to violate multiple internal revenue laws was a single

conspiracy, “however diverse its objects,” because it violated only one conspiracy

statute. Braverman, 317 U.S. at 54, 63 S. Ct. at 102. Here, in contrast, defendants

were charged with two conspiracies, under separate statutory provisions, which

clearly “specify different ends as the proscribed object of the conspiracy.” See

Albernaz v. United States, 450 U.S. 333, 339, 101 S. Ct. 1137, 1142 (1981)

(concluding that conspiracy to import and conspiracy to distribute marijuana in

violation of separate statutory provisions satisfied the Blockburger test).

We also reject Holton’s argument that we should apply the “same evidence”

test from United States v. Marable, 578 F.2d 151 (5th Cir. 1978). In Marable, the

former Fifth Circuit concluded that a defendant’s conviction for conspiracy to

distribute cocaine violated double jeopardy because it was based on the same

evidence as his prior conviction for conspiracy to distribute heroin, and that the

two conspiracies reflected only “a single agreement to deal broadly in drugs.” 578

F.2d at 154–56. Marable, however, was abrogated by the Fifth Circuit’s en banc

decision in United States v. Rodriguez, which recognized that Blockburger places

the focus on the “elements of the offense charged, not on the evidence adduced at

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trial.” 612 F.2d 906, 919 & n.35 (5th Cir. 1980) (en banc),5 aff’d sub nom.

Albernaz v. United States, 450 U.S. 333, 101 S. Ct. 1137 (1981), overruled on

other grounds by United States v. Michelena-Orovio, 719 F.2d 738, 756–57 (5th

Cir. 1983) (en banc); see also Hassoun, 476 F.3d at 1187 n.7 (recognizing

abrogation).

To the extent Marable retains any precedential value in this Circuit, it is

limited to, “at most, cases in which two counts are charged under the same

conspiracy statute.” Hassoun, 476 F.3d at 1187 n.7; see also United States v.

Anderson, 872 F.2d 1508, 1520 (11th Cir. 1989) (indicating that Marable does not

apply “where the same agreement violates two separate statutes, each of which

proscribes a discrete conspiracy”). Marable is wholly inapplicable because this

case, even with its common facts, still involves two separate conspiracies, one

under 18 U.S.C. § 1951(a) and the other under 21 U.S.C. §§ 841(a)(1) and 846.

V. OUTRAGEOUS CONDUCT

Cannon and Holton argue that the creation of the stash house robbery

scheme constituted outrageous government conduct in violation of the Fifth

5 This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

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Amendment’s Due Process Clause, and that the district court erred in denying their

motion to dismiss the indictment on this basis. 6

Outrageous government conduct is a potential defense that “focuses on the

tactics employed by law enforcement officials to obtain a conviction for conduct

beyond the defendant’s predisposition.” United States v. Sanchez, 138 F.3d 1410,

1413 (11th Cir. 1998). It is based on the Supreme Court’s recognition of the

possibility that law enforcement’s tactics may be “so outrageous that due process

principles would absolutely bar the government from invoking judicial processes

to obtain a conviction.” United States v. Russell, 411 U.S. 423, 431–32, 93 S. Ct.

1637, 1643 (1973). To establish outrageous government conduct, a defendant

must show that law enforcement’s techniques violate “fundamental fairness,

shocking to the universal sense of justice, mandated by the Due Process Clause of

the Fifth Amendment.” See id. at 432, 93 S. Ct. at 1643 (quotation marks omitted).

Our Circuit has caselaw analyzing outrageous government conduct claims,

although this defense has never succeeded here or in the Supreme Court. See

Sanchez, 138 F.3d at 1413 (stating that “[t]his Court recognizes the defense of

outrageous governmental conduct,” but noting the standard has never been met in

6 We review de novo the denial of a motion to dismiss based on outrageous government conduct. United States v. Jayyousi, 657 F.3d 1085, 1111 (11th Cir. 2011). We reject the government’s claim that Cannon waived this argument by failing to object to the magistrate judge’s Report. Because the Report did not fully inform Cannon of the consequences on appeal of failing to object, we review Cannon’s claims de novo. See 11th Cir. R. 3-1.

26 USCA11 Case: 16-16194 Date Filed: 02/03/2021 Page: 27 of 47

this Court or in the Supreme Court); see also United States v. Ciszkowski, 492

F.3d 1264, 1270 (11th Cir. 2007) (“[W]e do recognize the outrageous government

conduct defense.”). However, the concurring opinion in Ciszkowski, and this

Court’s later opinion in United States v. Jayyousi, 657 F.3d 1085 (11th Cir. 2011),

doubted that the defense is “recognized” in this Court. Both state that because this

Court has never actually reversed a conviction based on outrageous government

conduct, any discussion of it is merely dicta. See Ciszkowski, 492 F.3d at 1272

(Carnes, J., concurring) (stating that this Court’s discussion of the defense is

contained only in “speculative dicta”); Jayyousi, 657 F.3d at 1111 (“We have

never applied the outrageous government conduct defense and have discussed it

only in dicta.”).

We need not decide whether to adopt this defense because Cannon and

Holton have not shown the government’s conduct was outrageous in any event.

Merely presenting defendants with a non-unique opportunity to commit a crime, of

which they are more than willing to take advantage, does not amount to outrageous

government conduct. See United States v. Savage, 701 F.2d 867, 869–70 (11th

Cir. 1983). This Court has repeatedly rejected challenges to reverse sting

operations, see Sanchez, 138 F.3d at 1413, and noted that they are “recognized and

useful methods of law enforcement investigation,” Ciszkowski, 492 F.3d at 1271.

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Taken in its entirety, the government’s conduct was not outrageous and did

not violate due process. See United States v. Haimowitz, 725 F.2d 1561, 1577

(11th Cir. 1984) (providing that we examine outrageous government conduct under

the totality of the circumstances, and no single factor controls). Although the

government presented Cannon and Holton with the opportunity to rob a stash

house, it did not provide the entire means of executing the plan, and defendants

offered much more than their “meager assistance.” See United States v. Puett, 735

F.2d 1331, 1335 (11th Cir. 1984) (stating that government conduct may be

outrageous “when the government instigates the criminal activity, provides the

entire means for its execution, and runs the entire operation with only meager

assistance from the defendant”). The government did not initially recruit Cannon

or Holton, and it was Cannon who offered to assist the CI in the future if the CI

needed. Later, it was Cannon who offered the UC detective a “team” that could

assist with the robbery. Notably, Cannon brought Holton into the scheme.

Cannon and Holton also declined multiple opportunities to withdraw from

the robbery, were undeterred by the assured presence of armed guards at the stash

house, and were willing to provide the know-how and their own guns necessary to

carry out the robbery. During the recorded meetings, Holton and Cannon readily

filled in the details of the plan, informing the UC detective what they would do

before, during, and after the robbery. Under the totality of the circumstances,

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Holton and Cannon have not shown the government’s conduct was outrageous or

fundamentally unfair or “shocking to the universal sense of justice.” See Russell,

411 U.S. at 432, 93 S. Ct. at 1643 (quotation marks omitted).

To be sure, the government’s CI suggested the robbery, and the UC

detective invented the idea of a stash house with 18 kilograms of cocaine and

armed guards and offered Cannon and Holton a van to use. But this level of

involvement does not go beyond merely presenting Cannon and Holton with the

opportunity to commit a crime, which does not amount to outrageous conduct. See

Savage, 701 F.2d at 869–70.

Cannon and Holton also argue the CI’s robbery scheme served no purpose

other than to “create crime,” given that no drugs were taken off the streets.7 This

argument ignores that the government presented Cannon and Holton only with an

opportunity of which they “were more than willing to take advantage.” See id. at

869. Under the particular circumstances here, including the defendants’ active and

willing participation in the scheme, we have no reason to depart from our

precedent recognizing reverse stash house stings as lawful methods of

7 While Holton argues that we should apply the six factors articulated by the Ninth Circuit in United States v. Black, 733 F.3d 294, 303 (9th Cir. 2013), the test in this Circuit examines the totality of the circumstances, as discussed and applied above. See Haimowitz, 725 F.2d at 1577. The two California district court decisions the defendants rely on were reversed by the Ninth Circuit. See United States v. Flores, 650 F. App’x 362, 362 (9th Cir. 2016); United States v. Dunlap, 593 F. App’x 619, 620 (9th Cir. 2014).

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investigation. See Ciszkowski, 492 F.3d at 1271; Sanchez, 138 F.3d at 1413.8

VI. ENTRAPMENT INSTRUCTION

Cannon and Holton challenge the district court’s refusal to give an

entrapment instruction. 9

A. Entrapment Defense

Entrapment is an affirmative defense. United States v. Orisnord, 483 F.3d

1169, 1178 (11th Cir. 2007). Entrapment has two elements: “(1) government

inducement of the crime and (2) the defendant’s lack of predisposition to commit

the crime before the inducement.” Id.

A defendant has the initial burden of production to show the government

induced the defendant to commit the crime. Id. To establish inducement, “a

defendant must prove more than that the government first solicited him or merely

provided the opportunity for the crime.” United States v. West, 898 F.2d 1493,

1502 (11th Cir. 1990). Instead, the defendant must show “an element of

persuasion or mild coercion,” in other words, “opportunity plus something like

excessive pressure or manipulation of a non-criminal motive.” See United States

v. Brown, 43 F.3d 618, 623 (11th Cir. 1995). If the defendant produces sufficient

8 Cannon also argues, for the first time on appeal, that the district court should have dismissed the indictment pursuant to its inherent authority. There is no basis to conclude that the district court erred, much less plainly erred, in refusing to dismiss the indictment on this ground. 9 We review de novo a district court’s refusal to give an entrapment instruction. See United States v. Dixon, 901 F.3d 1322, 1346–47 (11th Cir. 2018).

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evidence to create jury issues as to inducement, the burden shifts to the

government to prove beyond a reasonable doubt that the defendant was

predisposed to commit the crime. Orisnord, 483 F.3d at 1178.

The district court did not err in denying the defendants’ request for an

entrapment instruction. Cannon and Holton failed to present sufficient evidence to

create a jury issue on inducement. As explained above, Cannon and Holton

without hesitation agreed to rob the stash house and declined multiple

opportunities to withdraw. Cannon and Holton planned and informed the UC

detective what would happen at each stage of the robbery—from waiting in a blind

spot as the UC went to the door, to tying up the guards and searching the house, to

Holton dumping his gun when it was all over. On their own, they involved a third

person, Nathaniel Stubbs, and never expressed any doubt. There is also no

evidence that the government persuaded or coerced Cannon and Holton into

committing any of the charged crimes. See Brown, 43 F.3d at 623.

Holton stresses that the government created the robbery scheme, offered to

provide transportation, and induced him and Cannon to bring weapons by having

the UC detective repeatedly state the guards would be armed. The mere creation of

the opportunity to rob the stash house does not show inducement. See West, 898

F.2d at 1502. The facts that Cannon and Holton were offered a van and told armed

guards would be at the stash house do not evince “an element of persuasion or mild

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coercion.” See Brown, 43 F.3d at 623. If anything, that Cannon and Holton were

not dissuaded by the armed guards’ presence shows they were ready and willing to

commit the robbery regardless of the danger. Indeed, and in any event, the

government proved beyond a reasonable doubt the defendants’ predisposition to

commit the crime. See Orisnord, 483 F.3d at 1178.

The government points out that Holton and Cannon had the ability to present

an effective defense. The district court gave a theory of defense instruction, which

emphasized the mental state required for a conviction. The court told the jury to

find Cannon and Holton guilty only if it concluded that they had the requisite

intent or willfulness to commit the crimes charged and the government merely

presented them “with the opportunity to do so.” Even without an entrapment

instruction, the jury was able to consider whether Cannon and Holton acted with

the requisite willful intent to commit a crime.

B. Sentencing Entrapment

For the first time on appeal, Cannon raises a sentencing entrapment claim.10

He argues the government entrapped him into agreeing to rob a greater quantity of

drugs than he was predisposed to purchase and that the district court should have

10 Because at trial Cannon did not request an instruction on sentencing entrapment, we review the issue for plain error. See United States v. Starke, 62 F.3d 1374, 1380 (11th Cir. 1995).

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given an instruction on sentencing entrapment.

“Sentencing entrapment is the claim that a defendant, although predisposed

to commit a minor or lesser offense, is entrapped into committing a greater offense

subject to greater punishment.” Sanchez, 138 F.3d at 1414 (quotation marks

omitted). This Court previously has rejected the viability of sentencing entrapment

as a defense. Ciszkowski, 492 F.3d at 1270. Therefore, the district court did not

err, much less plainly err, in not giving a sentencing entrapment instruction.

Cannon argues that in light of the Supreme Court’s decision in Apprendi v.

New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), our precedent rejecting the

sentencing entrapment defense should be overruled. We disagree. Apprendi has

no application to a sentencing entrapment defense.

Even assuming the defense was somehow available, it would be examined

“according to those rules applicable to a traditional entrapment defense,” which

requires the defendant to carry the initial burden of establishing inducement.

United States v. Ryan, 289 F.3d 1339, 1343 (11th Cir. 2002). As set forth above,

Cannon failed to present sufficient evidence to create a jury issue as to inducement.

VII. JUROR DISMISSAL

Cannon argues that the district court erred in dismissing Tameka Spicer from

the jury because: (1) Spicer said she could be fair and impartial; and (2) no

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adequate record was made concerning her financial relationship to Holton’s wife.11

A district court has the authority to replace with alternates “any jurors who

are unable to perform or who are disqualified from performing their duties.” Fed.

R. Crim. P. 24(c)(1). It is within the district court’s sound discretion to remove

and replace a juror “whenever facts are presented which convince the trial judge

that the juror’s ability to perform his duty as a juror is impaired.” United States v.

Crabtree, 878 F.3d 1274, 1288 (11th Cir. 2018) (quoting United States v. Fajardo,

787 F.2d 1523, 1525 (11th Cir. 1986)).

“We will not disturb a district court’s decision to remove a juror before

deliberations absent a showing of bias or prejudice, which includes removal

without factual support, or for a legally irrelevant reason.” United States v.

Godwin, 765 F.3d 1306, 1316 (11th Cir. 2014) (quotation marks omitted). The

district court need provide only “a reasonable cause” for its decision to replace a

juror. Crabtree, 878 F.3d at 1288 (quoting Fajardo, 787 F.2d at 1526). When a

juror demonstrates actual bias, or if bias is implied due to a special relationship

with a party, removal is required. United States v. Rhodes, 177 F.3d 963, 965

(11th Cir. 1999).

11 We review a district court’s decision to dismiss a juror for an abuse of discretion. United States v. Crabtree, 878 F.3d 1274, 1288 (11th Cir. 2018).

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The district court did not abuse its discretion in dismissing juror Spicer who

knew Holton’s wife and styled her hair on a regular basis. It was well within the

district court’s discretion to conclude that Spicer’s relationship to Holton’s wife

was financial in nature and “too close,” and that this created a greater likelihood of

her being “influenced by her relationship to . . . Holton’s wife.” That Spicer told

the district court the relationship would not impact her ability to perform her duties

does not compel a different conclusion. Despite her statement of no actual bias,

the court was still required to determine if there would be implied bias due to the

relationship. See Rhodes, 177 F.3d at 965.

Because the court’s decision to dismiss Spicer was supported by a factual

basis for implied bias and a legally relevant reason, we will not disturb it. See

Godwin, 765 F.3d at 1316. Even if the court had somehow violated Rule 24(c),

which it did not, Cannon makes no attempt to show that Spicer’s replacement prior

to deliberations resulted in prejudice requiring reversal. See United States v.

Puche, 350 F.3d 1137, 1152–53 (11th Cir. 2003) (stating that reversal is required

only when there is a “reasonable possibility” that the Rule 24(c) violation resulted

in actual prejudice to the defendants) (quotation marks omitted).

We also reject Cannon’s argument that the district court failed to develop the

record regarding Spicer’s financial ties to Holton’s wife. After putting Spicer

under oath and establishing the existence of her relationship to Holton’s wife, the

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district court said it was willing to ask additional questions of Spicer and invited

both sides to present authorities in support of their positions. Neither Cannon nor

Holton requested further questioning or offered caselaw indicating that Spicer’s

dismissal would be improper. To the contrary, Cannon indicated it was “in all

likelihood” within the court’s discretion to dismiss Spicer. Spicer’s dismissal was

not an abuse of discretion.

VIII. COURT REPORTER ACT

Cannon argues that his right to have all proceedings in open court

transcribed was violated. Cannon requests “a new trial or reconstruction of the

Records” because he has new counsel on appeal. Cannon cites to the Court

Reporter Act, 28 U.S.C. § 753, but fails to explain, what, if anything, was omitted

from the record. The government interprets Cannon’s sparse argument as

challenging the court reporter’s failure to transcribe the recorded conversations that

were admitted into evidence.

The Court Reporter Act requires “all proceedings in criminal cases had in

open court” to be “recorded verbatim by shorthand, mechanical means, electronic

sound recording, or any other method, subject to regulations promulgated by the

Judicial Conference and subject to the discretion and approval of the judge.” 28

U.S.C. § 753(b)(1). We review de novo questions of statutory interpretation. See

United States v. Witek, 61 F.3d 819, 821 (11th Cir. 1995).

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At trial, both the recordings and the corresponding written transcripts of

them were admitted into evidence and are part of the record on appeal. The record

is complete. The transcripts were admitted as exhibits of the actual conversations

on the recordings and no one, then or now, contested their accuracy. Under these

circumstances, nothing in the Court Reporter Act requires that the audio or video

recordings, which “are not testimony but are themselves admitted into evidence as

exhibits,” also be transcribed by the court reporter. See United States v. Morales-

Madera, 352 F.3d 1, 7 (1st Cir. 2003) (stating, in case involving wiretapped

recordings, that “[t]he Court Reporter Act is not usually understood to require the

reporter to record separately the contents of exhibits admitted in evidence”); see

also United States v. Craig, 573 F.2d 455, 480 (7th Cir. 1977) (concluding there

was “substantial compliance” with the Court Reporter Act—even though court

reporter did not transcribe tape recordings that were played to the jury—because

the recordings were part of the record on appeal, the court had before it “the most

accurate record of what was heard by the jury,” and appellate review was in no

way impeded).

IX. FIREARM CONVICTIONS

Cannon and Holton challenge their § 924(c) firearm convictions.

A. Background

Section 924(c) prohibits a person from using or carrying a firearm “during

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and in relation to any crime of violence or drug trafficking crime” or possessing a

firearm “in furtherance of any such crime.” 18 U.S.C. § 924(c)(1)(A). Count 3

charged that Cannon and Holton used and carried a firearm during and in relation

to a crime of violence (the Hobbs Act robbery conspiracy in Count 1) and a drug

trafficking crime (the cocaine conspiracy in Count 2).

Before their 2016 trial, the defendants claimed that Hobbs Act robbery

conspiracy was not a crime of violence based on Johnson v. United States, 576

U.S. 591, 135 S. Ct. 2551 (2015), and moved the district court to dismiss that

predicate in Count 3. The district court denied the defendants’ motion and

submitted Count 3 to the jury with both predicates.

In 2019, while this appeal was pending, the Supreme Court in United States

v. Davis invalidated part of § 924(c)’s definition of a crime of violence, the so-

called residual clause in § 924(c)(3)(B). Davis, 588 U.S. ___, 139 S. Ct. 2319,

2324–25, 2336 (2019). Thus, after Davis, for an offense to qualify as a crime of

violence it must satisfy § 924(c)(3)(A)’s elements clause. Davis did not, however,

affect the definition of a drug trafficking crime, which includes “any felony

punishable under the Controlled Substances Act.” See 18 U.S.C. § 924(c)(2).

Subsequently, this Court held that Hobbs Act robbery conspiracy does not

categorically qualify as a crime of violence under § 924(c)(3)(A)’s elements

clause. See Brown v. United States, 942 F.3d 1069, 1075 (11th Cir. 2019).

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B. Two Predicates in Count 3

On appeal, the defendants contend that because one of the two predicate

crimes in Count 3 is an invalid predicate, their § 924(c) convictions must be

vacated. The defendants do not dispute that the other predicate crime—the cocaine

conspiracy in Count 2—qualifies as a “drug trafficking crime” and remains a valid

predicate for Count 3. Even so, they argue that because the jury entered a general

verdict, we cannot know if the jury unanimously found their guns connected to the

now-invalid Hobbs Act robbery conspiracy predicate or the still-valid cocaine

conspiracy predicate.

First, we agree that it was error for the district court to deny the defendants’

motion to dismiss the predicate of Hobbs Act robbery conspiracy and to submit

that crime as a valid predicate in Count 3 for the jury’s consideration. Although

the trial occurred in 2016, the defendants timely raised the issue in the district court

and in this direct appeal, and Davis and Brown apply here. See United States v.

Cubelo, 726 F.3d 1260, 1266 (11th Cir. 2013) (explaining that the Supreme

Court’s new rule applies retroactively on direct appeal if a defendant preserved his

objection throughout the trial and appeal process). Further, it is error to instruct a

jury that it can convict on alternative theories of guilt, one of which is invalid.

Hedgpeth v. Pulido, 555 U.S. 57, 58, 129 S. Ct. 530, 530 (2008); see also Yates v.

United States, 354 U.S. 298, 312, 77 S. Ct. 1064, 1073 (1957), overruled on other

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grounds by Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141 (1978); Stromberg v.

California, 283 U.S. 359, 367-68, 51 S. Ct. 532, 535 (1931).

Nonetheless, the government contends that this error was harmless.12 The

error here is not structural and is subject to harmless-error review. See Hedgpeth,

555 U.S. at 61-62, 129 S. Ct. at 532 (holding instructional errors arising in the

context of multiple theories of guilt, one of which is invalid, are not structural

errors but are errors subject to harmless-error review);13 see also Skilling v. United

States, 561 U.S. 358, 414 & n.46, 130 S. Ct. 2896, 2934 & n.46 (2010). The

government, however, has the burden as to harmless error. See Neder v. United

States, 527 U.S. 1, 15, 119 S. Ct. 1827, 1837 (1999).

The harmless-error test “is whether it appears ‘beyond a reasonable doubt

that the error complained of did not contribute to the verdict obtained.’” Id.

(quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828 (1967)).

Stated another way: “Is it clear beyond a reasonable doubt that a rational jury

would have found the defendant guilty absent the error?” Id. at 18, 119 S. Ct. at

12 Because the defendants in the district court raised the issue of whether Hobbs Act robbery conspiracy qualifies as a crime of violence under § 924(c), we review that issue de novo. See United States v. Bates, 960 F.3d 1278, 1285 (11th Cir. 2020). 13 In Hedgpeth, the Supreme Court further explained: “Both Stromberg and Yates were decided before we concluded in Chapman v. California that constitutional errors can be harmless. Accordingly, neither Stromberg nor Yates had reason to address whether the instructional errors they identified could be reviewed for harmlessness, or instead required automatic reversal.” 555 U.S. at 60, 129 S. Ct. at 532 (citation omitted).

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1838; see also Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 1436

(1986) (“[A]n otherwise valid conviction should not be set aside if the reviewing

court may confidently say, on the whole record, that the constitutional error was

harmless beyond a reasonable doubt.”).

C. Harmless Error

Here, the government has met its burden to show that this error as to Count 3

was harmless. If Hobbs Act robbery conspiracy were the only predicate for the

defendants’ § 924(c) firearm convictions, their convictions would be invalid and

would have to be vacated under Davis. But it wasn’t. The other predicate was the

still-valid cocaine conspiracy crime. Thus, there remains a valid predicate to

support the defendants’ § 924(c) convictions.

That alone does not end our harmless-error inquiry. The defendants argue

that the jury may have unanimously found the guns connected to the invalid Hobbs

Act robbery conspiracy but not to the still-valid cocaine conspiracy. Because there

was a general verdict, the defendants argue it is impossible to tell if the jury

unanimously agreed the guns were connected to the cocaine conspiracy. We

disagree because the trial record makes clear that the two predicate conspiracy

crimes were so inextricably intertwined that no rational juror could have found that

Cannon and Holton carried a firearm in relation to one predicate but not the other.

First, the indictment itself indicates the two conspiracies were intertwined

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and coextensive. Count 1 charged that, between June 22, 2015, and November 13,

2015, Cannon, Holton, and Stubbs conspired to rob narcotics traffickers of their

cocaine. Correspondingly, Count 2 charged that, during that same time period, the

same three defendants also conspired to possess the same controlled substance,

cocaine, with the intent to distribute it.

Second, the jury found Cannon and Holton guilty of both the underlying

Hobbs Act robbery conspiracy charged in Count 1 and the underlying cocaine

conspiracy charged in Count 2. The jury’s guilty verdicts on both Counts 1 and 2

conclusively establish that the jury unanimously found beyond a reasonable doubt

that the defendants were conspiring to rob the stash house of cocaine so they could

then possess and distribute the cocaine themselves.

Third, while the two conspiracies had different elements, the trial evidence

established the same facts and time period underlying each crime. The cocaine the

defendants were planning to rob from the narcotics traffickers was the same

cocaine they were planning to possess with the intent to distribute. Undisputedly,

the goal of the robbery scheme was to steal cocaine from a stash house so they

could then distribute it themselves. And, on the day of the planned stash house

robbery, the defendants brought firearms to the prearranged meeting place because

they intended to use those firearms to take the cocaine from the armed guards at

the stash house. In other words, the defendants brought the firearms

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simultaneously to rob the narcotics traffickers of cocaine and to take possession of

the cocaine. No reasonable juror could have found that Cannon and Holton carried

their firearms in relation to the Hobbs Act robbery conspiracy but not the cocaine

conspiracy. We thus can confidently say, on the whole record, that the error was

harmless beyond a reasonable doubt. See Neder, 527 U.S. at 15, 18, 119 S. Ct. at

1837, 1838; Van Arsdall, 475 U.S. at 681, 106 S. Ct. at 1436.

Before concluding, we review three other § 924(c) decisions where the

predicates also involved Hobbs Act robbery conspiracy and drug crimes. See In re

Navarro, 931 F.3d 1298 (11th Cir. 2019); In re Cannon, 931 F.3d 1236 (11th Cir.

2019); In re Gomez, 830 F.3d 1225 (11th Cir. 2016). Although these cases

occurred in the § 2255 context where the defendant carries the burden, they

illustrate the importance of the factual record in evaluating § 924(c) crimes after

Davis.

In In re Navarro, this Court concluded that the predicate crimes “seem[ed]

inextricably intertwined, given the planned robbery underlying the charge for

conspiracy to commit Hobbs Act robbery was the robbery of a [fake] drug stash

house.” 931 F.3d at 1302 n.2. The Court held that the drug-trafficking predicates

“independently supported” the defendant’s § 924(c) firearm conviction because the

record—the factual proffer supporting his guilty plea—established that he

committed the drug crimes and carried a firearm in relation to them. Id. at 1300,

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1302-03 (denying defendant’s application to file a successive § 2255 motion). The

Court pointed out that it was “difficult to imagine how Navarro could have

admitted facts supporting a conspiracy to commit Hobbs Act robbery without

simultaneously admitting facts supporting one or both of the drug-trafficking

crimes.” Id. at 1302 n.2. There was no uncertainty as to which of the three

predicates underlay the § 924(c) conviction because the plea agreement and factual

proffer made clear the conviction was based on all three. Id. at 1303 n.4. The

Court held Navarro had not made the required “prima facie” showing on his Davis

claim. Id. at 1303.

In contrast, when there is only a limited record before the Court, it may be

unclear which crime served as the predicate. For example, In re Cannon involved

ten § 924(o) predicates, including two carjackings, two Hobbs Act robberies, four

drug crimes, a drug conspiracy, and a conspiracy to commit Hobbs Act robbery.

931 F.3d at 1239, 1243. The Court observed that “the predicate crimes seem[ed]

inextricably intertwined,” but determined the defendant made a “prima facie”

showing under § 2255(h)(2) because it was “somewhat unclear,” based on “the

limited record” before the Court, which crime or crimes served as § 924(o)

predicates. Id. at 1243. The Hobbs Act robbery and drug conspiracies had lasted

three months, and the substantive crimes were committed during home invasions

on two separate days. Id. at 1239. Therefore, the Court granted Cannon’s

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application to file a successive § 2255 motion so that the district court could

review the trial record and address whether the predicate crimes were “inextricably

intertwined.” Id. at 1244.

Similarly, in In re Gomez, we discussed the dangers of a general jury verdict

and the limited record before us and determined the defendant had made a “prima

facie” showing to file a successive § 2255 motion. 830 F.3d at 1227–28. Count 5

charged that Gomez used the firearm “during two drug trafficking offenses and an

attempted Hobbs Act robbery on the same day, as well as an ongoing conspiracy to

commit Hobbs Act robbery that lasted two weeks.” Id. at 1227. Lacking the trial

record, the Court surmised that “the evidence may . . . have shown that he left that

firearm at home for the drug trafficking crimes, or the attempted robbery” and may

have possessed the firearm only “at some point during the Hobbs Act conspiracy.”

Id. At this “prima facie” stage, the Court concluded that “we can only guess which

predicate the jury relied on,” and that “half of the jury may have believed that

Gomez used the gun at some point during his Hobbs Act conspiracy, and the other

half that he did so only during the drug trafficking offense.” Id. at 1226, 1228.

Here, we have a complete factual record, and the trial testimony and

recordings established definitively that Cannon and Holton brought firearms in

their car to the prearranged meeting place on the day of the planned stash house

robbery in order to use them to steal the cocaine from the armed guards and to take

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possession of the cocaine so they could distribute it themselves. In addition, the

district court instructed the jury that it “must be unanimous as to whether the

United States ha[d] proven that the Defendant used or carried a firearm during and

in relation to a violence crime or a drug trafficking crime or both.” Given that we

must presume the jury followed the court’s unanimity instruction, we know that it

is not possible some of the jurors found that the defendants carried a firearm only

during the Hobbs Act robbery conspiracy, while some other jurors found that they

did so only during the cocaine conspiracy.14

In sum, the trial record makes clear the Hobbs Act robbery conspiracy

predicate was inextricably intertwined with the cocaine conspiracy predicate, both

of which were proven to the jury beyond a reasonable doubt. Therefore, despite

the general verdict as to Count 3, the record, as a whole, shows that the jury

14 At trial, the defendants requested a special verdict as to which predicate in Count 3 or both were the basis for the § 924(c) conviction. The defendants never claimed that Count 3 was duplicitous for charging two separate and distinct crimes in one count that must be set forth in separate counts. For the first time on appeal, Holton claims Count 3 was duplicitous; so we review that issue for plain error. See United States v. Deason, 965 F.3d 1252, 1267 (11th Cir. 2020). A count in an indictment is duplicitous if it charges two or more separate and distinct offenses. United States v. Schlei, 122 F.3d 944, 977 (11th Cir. 1997). Holton does not explain why § 924(c) sets forth two separate and distinct crimes as opposed to one crime with alternative predicates. And In re Gomez has no holding on the duplicity issue as to § 924(c). In any event, we need not decide the duplicity issue because Holton has not shown the error, if any, was plain or that it prejudiced him. See Deason, 965 F.3d at 1267-68 (stating to show duplicity error affected defendant’s substantial rights, he must show there was “a reasonable probability that the jury did not unanimously” agree on a single offense). As set forth above, the predicate crimes are so inextricably intertwined, no reasonable juror could have found the defendants carried a firearm in relation to one but not the other.

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unanimously found that Cannon and Holton used and carried a firearm during and

in relation to a conspiracy to possess cocaine with intent to distribute, a drug

trafficking crime unaffected by Davis. Thus, the government has carried its burden

of showing harmless error. Accordingly, Cannon and Holton’s challenge to their

§ 924(c) convictions on Count 3 fails.

X. CONCLUSION

For the reasons above, we affirm Cannon’s and Holton’s convictions and

sentences.