United States v. Rogers

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 22, 2025
• Docket: 23-3152
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 22 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-3152

Plaintiff-Appellee, D.C. No. 2:22-cr-00064-APG-EJY-1 v.

CALEB MITCHELL ROGERS, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding

Argued and Submitted May 15, 2025 San Francisco, California

Before: N.R. SMITH and DE ALBA, Circuit Judges, and BENNETT,** District Judge.

A jury convicted Appellant Caleb Mitchell Rogers of three counts of Hobbs

Act robbery, in violation of 18 U.S.C. § 1951, related to three Las Vegas casino

robberies in November 2021, January 2022, and February 2022; and one count of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Richard D. Bennett, United States Senior District Judge for the District of Maryland, sitting by designation. brandishing a firearm during and in relation to a crime of violence, in violation of

18 U.S.C. § 924(c)(1)(A)(ii), related to the third robbery where Appellant was

arrested. On appeal, he challenges the district court’s denial of his motion to sever,

denial of his motion to suppress, and refusal of a requested jury instruction. We

have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

1. We review the district court’s decision on a motion for severance for

abuse of discretion. United States v. Vargas-Castillo, 329 F.3d 715, 722 (9th Cir.

2003). “The test for abuse of discretion by the district court is whether a joint trial

was so manifestly prejudicial as to require the trial judge to exercise his discretion

in but one way, by ordering a separate trial.” United States v. Barragan, 871 F.3d

689, 701 (9th Cir. 2017) (citation omitted). Appellant contends that, because the

evidence against him relating to the third robbery was stronger than the “anemic”

evidence connecting him to the earlier two robberies, the joint trial resulted in a

“prejudicially consolidated verdict.” Appellant has not demonstrated that the trial

was manifestly prejudicial so as to violate one of his substantive rights. United

States v. Seifert, 648 F.2d 557, 563 (9th Cir. 1980). While Appellant argues that

evidence from the third robbery would have been inadmissible upon severance under

Federal Rules of Evidence 403 and 404(b), we are unpersuaded. Identity was the

primary issue in Counts One and Two, and the modi operandi of all three robberies

were very similar. United States v. Johnson, 820 F.2d 1065, 1070 (9th Cir. 1987)

2 (“If all of the evidence of the separate count would be admissible upon severance,

prejudice is not heightened by joinder.”). Moreover, Appellant’s characterization of

the evidence connecting him to the earlier two robberies is contradicted by the

record, and “defendants are not entitled to severance merely because they may have

a better chance of acquittal in separate trials.” Zafiro v. United States, 506 U.S. 534,

540 (1993). Regardless, the district court mitigated any potential prejudice when it

instructed the jury that it must decide each count separately. Johnson, 820 F.2d at

1071.

2. We review the denial of a motion to suppress de novo, and review

factual findings underlying the denial of the motion for clear error. United States v.

Yang, 958 F.3d 851, 857–58 (9th Cir. 2020). Appellant argues that the government

offered “pressure-induced testimony” from his brother, Josiah Rogers, and best

friend, Justin Jonsson, that was “so extremely unfair” that “exposure of both

testimonies to the jury ‘violate[d] fundamental conceptions of justice’ leading to an

unfairly-achieved conviction.” To show a due process violation, Appellant must

demonstrate that, based on the totality of the circumstances, “unnecessarily

suggestive circumstances arranged by law enforcement” prompted the challenged

testimony and created a substantial likelihood of misidentification. Perry v. New

Hampshire, 565 U.S. 228, 238–40, 248 (2012).

While Appellant largely complains that Josiah Rogers’s testimony was

3 self-interested, it does not follow based on the totality of the circumstances that

“unnecessarily suggestive circumstances arranged by law enforcement” prompted

the testimony and created a substantial likelihood of misidentification. Throughout

the challenged interview, Josiah Rogers resisted incriminating his brother, and

nothing in the record suggests that officers pressured him to say more.

The same is true for Jonsson. While Appellant complains about statements

officers made to Jonsson during their interview, the timing of these statements—that

is, that they followed Jonsson’s identification of Appellant—belies his argument that

such statements were coercive.

3. When reviewing a district court’s denial of a jury instruction on a

lesser-included offense, we employ a two-part analysis. See United States v.

Rivera-Alonzo, 584 F.3d 829, 832 (9th Cir. 2009). A defendant is entitled to a

lesser-included offense if “the elements of the lesser offense are a subset of the

elements of the charged offense,” and “the evidence would permit a jury rationally

to find [Appellant] guilty of the lesser offense and acquit [him] of the greater.”

United States v. Arnt, 474 F.3d 1159, 1163 (9th Cir. 2007) (citations omitted). We

review the first step de novo and the second step for abuse of discretion. Id.

Appellant emphasizes that he was caught while on casino grounds, thus the

robbery was not completed. To find a defendant guilty of completed Hobbs Act

robbery, a jury must find that the defendant engaged in the “unlawful taking or

4 obtaining of personal property from the person . . . of another, against his will, by

means of actual or threatened force.” United States v. Taylor, 596 U.S. 845, 850

(2022) (quoting 18 U.S.C. § 1951(b)). To find a defendant guilty of attempted

Hobbs Act robbery, a jury must find that the defendant intended to unlawfully take

or obtain personal property by means of actual or threatened force, and completed a

“substantial step” toward that end. Id. at 851 (citing United States v.

Resendiz-Ponce, 549 U.S. 102, 107 (2007)). While we have not definitively ruled

that attempted Hobbs Act robbery is a lesser-included offense within completed

Hobbs Act robbery, we need not do so here. It is clear from the record that Appellant

was not entitled to the lesser-included offense instruction under the circumstances

of this case because a rational jury could not find him guilty of attempted Hobbs Act

robbery and acquit him of completed Hobbs Act robbery. Appellant was intercepted

on casino grounds after he exited the casino and was running through the casino’s

parking lot towards the parking garage. That is, he unlawfully took or obtained

money from the casino by means of actual or threatened force and thus committed

Hobbs Act robbery. United States v. Irvine, 98 U.S. 450, 452 (1878) (explaining an

offense is “complete” when all the elements of the crime have been satisfied).

AFFIRMED.