US v. Corey Jone
Filing
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion for leave to file [999092857-2] in 12-4563; granting Motion to file supplemental brief(s) [999017519-2] in 12-4563 Originating case number: 1:11-cr-00530-CMH-2 Copies to all parties and the district court/agency. [999153188].. [12-4563, 12-4565]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4563
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
COREY THOMAS JONES,
Defendant - Appellant.
No. 12-4565
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM LOUIS COLE, JR.,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Claude M. Hilton, Senior
District Judge. (1:11-cr-00530-CMH-2; 1:11-cr-00530-CMH-1)
Argued:
May 17, 2013
Decided:
July 18, 2013
Before TRAXLER, Chief Judge, KING, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
ARGUED: Jerome Patrick Aquino, Springfield, Virginia; Maureen
Leigh White, Richmond, Virginia, for Appellants.
Patricia
Tolliver
Giles,
OFFICE
OF
THE
UNITED
STATES
ATTORNEY,
Alexandria, Virginia, for Appellee. ON BRIEF: Neil H. MacBride,
United States Attorney, Rebeca H. Bellows, Assistant United
States
Attorney,
OFFICE
OF
THE
UNITED
STATES
ATTORNEY,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Appellants Corey Thomas Jones and William Louis Cole, Jr.,
were convicted by a jury of conspiracy to commit bank robbery,
see 18 U.S.C. § 371, and armed bank robbery, see 18 U.S.C. §
2113(a) and (d).
carrying
violence,
a
Additionally, Cole was convicted of using and
firearm
18
and
U.S.C.
§
in
relation
to
crime
of
unlawfully
possessing a firearm, see 18 U.S.C. § 922(g)(1).
Appellants
numerous
challenges
challenges his sentence.
924(c)(1)(A),
a
and
raise
see
during
to
their
convictions,
and
Cole
For the reasons that follow, we reject
their arguments and affirm their convictions and sentences.
I.
On June 27, 2011, two masked men robbed at gunpoint the
Arlington
Boulevard
Virginia.
robbery.
BB&T’s
branch
video
of
the
BB&T
surveillance
bank
system
in
Fairfax,
recorded
the
Based on surveillance photos and the testimony of BB&T
employees present during the robbery, the facts of the robbery
itself are not a matter of dispute.
At approximately 2:00 p.m.,
an African-American male with long dreadlocks entered the bank,
approached the teller line, and “stated that he wanted to make a
withdrawal.”
painter’s
J.A. 205.
mask,
and
white
He was wearing sunglasses, a white
gloves.
A
second
suspect,
also
African American, entered the bank immediately after the first,
wearing a similar mask and sunglasses and carrying a black gun.
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He was stocky, wore light jeans, light gray tennis shoes and
black gloves.
While the second suspect pointed the gun at BB&T
employees, the first suspect jumped over the tellers’ counter
and took cash from the drawers.
The
bank
robbers
fled
the
building
with
approximately
$9,860, but BB&T employees managed to obtain the District of
Columbia license plate number of a Plymouth Voyager leaving the
scene.
The police located the Voyager within 10 minutes of the
robbery, abandoned in a nearby neighborhood.
The vehicle was
running without keys and the ignition column had been punched
out.
Police later discovered that the Voyager had been stolen
earlier that day from the intersection of First Street, NW, and
North Streets in Washington, D.C.
Approximately one hour before the bank robbery occurred,
Allan Luai, who worked in an office across the street from the
BB&T, noticed two African-American males sitting in a BMW that
was parked in Luai’s lot.
The BMW displayed Maryland plates and
the occupants were watching the BB&T.
remained
situated
like
this
for
Noticing that the BMW
15-20
minutes,
Luai
became
suspicious and wrote down the license plate number which he gave
to police shortly after the robbery.
in
turn,
registered
led
to
the
police
Cole’s
to
Cole.
sister,
Cole
vehicle.
4
The BMW’s license plates,
Although
owned
and
the
car
was
operated
the
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After the responding law enforcement officers connected the
BMW tag number to Cole, they notified Sergeant David Blazer that
Cole’s car had been spotted by a witness near the scene of an
armed
bank
Cole.
robbery
and
asked
him
to
conduct
surveillance
of
Sergeant Blazer was familiar with Cole because he had
previously investigated Cole’s involvement in unrelated criminal
activities, including a 2010 armed robbery of a check cashing
establishment for which Cole had been charged.
The surveillance
photos from BB&T’s security system were forwarded to Sergeant
Blazer, who observed that the second bank robber entering the
bank matched Cole’s stocky build.
stockier
suspect
colored,
gray
was
tennis
wearing
shoes.
He also observed that the
light-colored
Sergeant
jeans
Blazer
and
noted
light-
that
the
first suspect was wearing white gloves.
Sergeant Blazer observed Cole arriving at the residence of
his mother not long after the robbery, driving the same BMW that
Luai saw near the bank shortly before the robbery.
He further
observed that Cole was wearing light-colored jeans like those
worn by the gunman in the surveillance photographs.
About
6:30
p.m.
that
evening,
Cole
departed
from
his
mother’s home in the same BMW.
At Sergeant Blazer’s direction,
Officer
traffic
Lawrence
conducted
a
stop
of
Cole’s
BMW.
Officer Lawrence told Cole that he had been stopped for failure
to wear a seatbelt.
While officers performed the traffic stop,
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Sergeant
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Blazer
noticed
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that
although
Cole
had
changed
his
pants, he was wearing gray tennis shoes similar to those worn by
one of the bank robbers in the surveillance photos sent to him.
Sergeant
center
Blazer
console
because
in
the
also
of
noticed
Cole’s
white
car,
surveillance
a
latex
detail
photos
gloves
he
“one
in
the
open
found
of
significant
the
individuals
appeared to be wearing white latex gloves in the bank robbery.”
J.A.
271.
robbery.
A
Sergeant
Blazer
then
arrested
Cole
for
the
BB&T
Cole had $802 in his pocket.
subsequent
search
of
the
BMW
yielded
the
white
latex
gloves, a pair of black gloves from the trunk, and two cell
phones from the front seat.
One of the cell phones was a Sprint
HTC phone belonging to Cole.
Law enforcement agents conducted a
forensic examination of Cole’s phone and were able to recover
numerous text messages between Cole’s phone and the cell phone
used by Jones.
The forensic examination included historical
cellsite analysis to determine the physical location of Cole’s
and Jones’s cell phones at the time calls were made by them.
This analysis showed that four days before the robbery,
Cole texted Jones that “I got a lil situation for about 5 stacks
in about an [hour] if [you] want in on it.
work with no uniforms involved.”
Arlington
Boulevard
had
no
J.A. 585.
uniformed
response, Jones texted “Sweet.”
6
[It’s] real light
The BB&T branch on
security
J.A. 585.
guards.
In
FBI investigators
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were able to pinpoint the location of Cole’s cell phone that
same day on Arlington Boulevard in Fairfax, near the BB&T.
On
the day before the robbery, Jones texted Cole to ask “[what’s]
that robbery site?”
under
commercial
looking for.”
J.A. 549.
armed
Cole responded “[You] have to go
robberies
in
whatever
county
[you]
Id.
Early on the morning of the robbery, Jones sent Cole a text
inquiring whether Cole was coming to get Jones or if Cole wanted
Jones to get a ride from his girlfriend.
The evidence showed
that at 10:30 a.m., the phones for both Cole and Jones were
located in northwest Washington, D.C., near the spot where the
Plymouth Voyager used as the getaway vehicle was stolen.
Around
11:00 a.m., Jones’s cell phone was used to call Cole’s number
from near the BB&T back in Fairfax.
Cole and Jones were both indicted for armed bank robbery,
conspiracy to commit armed bank robbery, and using and carrying
a firearm during and in relation to a crime of violence.
alone
was
indicted
for
unlawfully
possessing
a
firearm
Cole
as
a
felon.
Prior
to
trial,
Cole
moved
to
suppress
the
evidence
recovered from his BMW on the basis that law enforcement had no
justification
for
performing
the
initial
traffic
probable cause for arresting him during the stop.
stop
or
Jones filed a
pretrial motion to strike the jury panel because it did not
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include any African-Americans.
The district court denied both
motions, and the case went to trial.
on all four counts.
robbery
and
The jury found Cole guilty
The jury found Jones guilty of armed bank
conspiracy
to
commit
armed
bank
robbery,
but
acquitted him of using and carrying a firearm during a crime of
violence.
Approximately
two
weeks
after
trial,
Jones
moved
for
discovery regarding the Eastern District of Virginia’s method of
selecting
jury
panels
to
determine
if
the
lack
of
African
Americans on the jury panel was an anomaly or the result of
systematic discrimination.
The court denied the motion, finding
nothing to show any systematic discrimination.
Cole was sentenced to 60 months each for the armed robbery,
conspiracy, and felon-in-possession counts, to run concurrently,
and a consecutive term of 84 months for using and carrying a
firearm during and in relation to a crime of violence.
challenges
the
enhancement
in
district
court’s
determining
imposition
Cole’s
of
advisory
an
Cole
obstruction
guideline
range.
Jones does not challenge his sentence.
II.
Cole challenges the district court’s denial of his pretrial
motion to suppress evidence recovered from a search of his BMW
following his traffic stop and arrest.
denial
of
a
motion
to
suppress,
8
our
When considering the
review
of
the
district
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court’s factual findings is for clear error and our review of
its legal conclusions is de novo.
See United States v. Lewis,
606 F.3d 193, 197 (4th Cir. 2010).
“Since the district court
denied the defendant’s motion below, we construe the evidence in
the light most favorable to the government.”
United States v.
Branch, 537 F.3d 328, 337 (4th Cir. 2008).
Cole
first
contends
that
the
police
basis for making the initial traffic stop.
had
no
justifiable
“Temporary detention
of individuals during the stop of an automobile by the police,
even if only for a brief period and for a limited purpose,
constitutes a ‘seizure’ of ‘persons’ within the meaning of [the
Fourth Amendment].”
10 (1996).
Whren v. United States, 517 U.S. 806, 809-
A traffic stop, generally speaking, is permissible
if the officer has “probable cause to believe that a traffic
violation has occurred.”
Id. at 810.
At the suppression hearing, Officer Lawrence testified that
he followed Cole in his BMW at a distance of about 10-15 feet.
Because it was still daylight and the weather was clear, Officer
Lawrence
could
see
that
Cole
was
not
wearing
his
shoulder
restraint and that the belt buckle was near the door jamb and
therefore could not have been fastened.
noticed
the
infraction,
he
activated
Cole.
9
After Officer Lawrence
his
lights
and
stopped
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Cole testified at the suppression hearing, claiming that he
was wearing his seatbelt.
former
police
officer
Cole also presented testimony from a
that,
based
on
the
former
officer’s
training, he believed that it is difficult to observe whether a
driver is wearing a seatbelt from a rear vantage point.
The
district
Lawrence
initial
and
court
concluded
traffic
credited
that
he
We
the
give
stop.
was
testimony
justified
particular
of
in
Officer
making
deference
to
“to
a
district court’s credibility determinations, for it is the role
of
the
district
credibility
court
during
a
to
observe
pre-trial
witnesses
motion
to
and
weigh
suppress.”
their
United
States v. Abu Ali, 528 F.3d 210, 232 (4th Cir. 2008) (internal
quotation marks omitted).
Construing the record in the light
most favorable to the government, we perceive no error of law or
fact
in
the
district
court’s
determination
that
there
was
probable cause to make the initial traffic stop.
Cole
further
argues
that
even
if
there
was
sufficient
justification for the initial stop, the police lacked probable
cause to support Cole’s arrest for the BB&T robbery.
agree.
We cannot
“Probable cause to justify an arrest means facts and
circumstances within the officer’s knowledge that are sufficient
to warrant a prudent person, or one of reasonable caution, in
believing,
in
the
circumstances
shown,
that
the
suspect
has
committed, is committing, or is about to commit an offense.”
10
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United States v. Williams, 10 F.3d 1070, 1073-74 (4th Cir. 1993)
(internal quotation marks omitted).
Viewing the evidence in the light most favorable to the
government, Sergeant Blazer knew at least the following facts:
1) a witness had seen Cole’s BMW near the scene of the robbery;
2) Cole’s stocky build matched that of the bank robber holding
the gun in the BB&T surveillance photos; 3) Cole was wearing
light-colored jeans like the bank robber in the surveillance
photos when he arrived at his mother’s house within hours of the
robbery; 4) Cole was wearing light-colored tennis shoes like the
robber who was holding the gun in the surveillance photos; and
5) the other bank robber wore white gloves in the surveillance
images and there were white gloves in the console of Cole’s car
at the time of the traffic stop.
Although
significantly
the
subsequently-developed
strengthened
the
cell
government’s
phone
case,
evidence
“evidence
sufficient to convict is not required” for probable cause to
exist.
Brown v. Gilmore, 278 F.3d 362, 367 (4th Cir. 2002).
We
are satisfied that Officer Blazer had probable cause to arrest
Cole for the bank robbery when he took him into custody.
III.
Appellants assert that there was insufficient evidence to
support their convictions.
On a challenge to the sufficiency of
the evidence, we view the evidence “in the light most favorable
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to the prosecution” and ask whether “any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.”
United States v. Collins, 412 F.3d 515, 519
(4th Cir. 2005) (internal quotation marks omitted).
both
direct
and
circumstantial
evidence,
We review
according
the
government all reasonable inferences from the facts shown to
those sought to be established.
See United States v. Harvey,
532 F.3d 326, 333 (4th Cir. 2008).
We assume that the jury
resolved all contradictions in the testimony in favor of the
government.
See United States v. Kelly, 510 F.3d 433, 440 (4th
Cir. 2007).
To prove armed bank robbery, the government must prove that
“(1) the defendant took . . . money belonging to a bank . . .;
(2)
by
using
[bank’s]
force
deposits
committing
.
.
.
.
and
violence,
.
were
.
the
or
intimidation;
federally
offense,
the
insured;
defendant
and
(3)
(4)
assaulted
the
in
any
person, or put in jeopardy the life of any person by the use of
a dangerous weapon or device.”
United States v. Davis, 437 F.3d
989, 993 (10th Cir. 2006).
As
agreement
for
to
conspiracy,
effectuate
the
a
essence
criminal
of
act.”
the
crime
United
Laughman, 618 F.2d 1067, 1074 (4th Cir. 1980).
“is
an
States
v.
“Sustaining a
conspiracy conviction under 18 U.S.C. § 371 requires that the
government prove: (1) an agreement between two or more people to
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commit a crime, and (2) an overt act in furtherance of the
conspiracy.”
United States v. Ellis, 121 F.3d 908, 922 (4th
Cir. 1997).
The evidence previously summarized shows there was clearly
sufficient evidence to convict both defendants for armed bank
robbery and conspiracy to commit armed bank robbery.
could
conclude,
based
on
this
evidence,
that
the
The jury
defendants
acted together, planned the robbery, scouted out the location in
advance, stole the getaway car, and committed the robbery.
The
cell phone evidence placed them at the scene of the robbery and
reflected text messages explicitly mentioning robbery and that
the target bank did not use uniformed security personnel.
To secure a conviction under 18 U.S.C. § 922(g)(1), the
government must establish that (1) the defendant was a convicted
felon;
(2)
he
knowingly
possessed
the
firearm;
firearm traveled in interstate commerce.
Gallimore,
247
F.3d
134,
136
(4th
Cir.
and
(3)
the
See United States v.
2001).
The
bank
surveillance photos showed the gun being wielded by the stockier
of the two robbers.
Since the evidence was sufficient to allow
a conviction of the defendants on the robbery and conspiracy
counts,
the
jury
reasonably
could
have
determined
that,
as
between Cole and Jones, Cole had to be the gunman as he was
stockier and generally fit the description of the bank robber
who was using the gun.
And like the man with the gun, Cole wore
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light-colored jeans not long after the robbery and was wearing
gray
tennis
shoes
when
arrested.
Thus,
we
reject
the
argument,
the
sufficiency challenges and affirm the convictions. 1
IV.
Defendants
argue
that
in
its
closing
government referred to facts not in evidence when it suggested
that Jones, who did not have dreadlocks at the time of the
robbery,
wore
a
dreadlock
wig
as
a
disguise.
Because
the
defendants did not object to the government’s closing argument,
we review for plain error.
Under the plain error standard, a
defendant must show “(1) that an error occurred, (2) that the
error
was
rights.”
plain,
and
(3)
that
it
affected
his
substantial
United States v. Penniegraft, 641 F.3d 566, 575 (4th
Cir. 2011).
Even if the defendant meets these requirements, we
will exercise our discretion to correct the error “only when
failure to do so would result in a miscarriage of justice, such
as
when
the
defendant
is
actually
1
innocent
or
the
error
Cole also argues that the government failed to offer
evidence that the firearm traveled in interstate commerce.
Because this claim is raised for the first time in his reply
brief, Cole has waived consideration of it. See Yousefi v. INS,
260 F.3d 318, 326 (4th Cir. 2001) (per curiam).
Although §
922(g)(1)’s interstate commerce element is often described as
jurisdictional, “it is ‘jurisdictional’ only in the shorthand
sense that without that nexus, there can be no federal crime”;
it does not affect a court’s “power to adjudicate a case.”
United States v. Martin, 526 F.3d 926, 933 (6th Cir. 2008).
Cole’s argument presents nothing more than an untimely challenge
to the sufficiency of the evidence that is subject to waiver.
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seriously affects the fairness, integrity or public reputation
of judicial proceedings.”
Id. (internal quotation marks and
alteration omitted).
Defendants raise their claim pursuant to United States v.
Wilson, 135 F.3d 291, 299 (4th Cir. 1998), which asks whether a
prosecutor’s
improper
remarks
“so
infected
the
trial
with
unfairness as to make the resulting conviction a denial of due
process.”
2010)
United States v. Caro, 597 F.3d 608, 624 (4th Cir.
(internal
quotation
marks
omitted).
To
prevail,
“the
defendant must show that the prosecutor’s remarks or conduct
were
improper
and
.
.
.
that
such
remarks
or
conduct
prejudicially affected his substantial rights so as to deprive
him of a fair trial.”
United States v. Scheetz, 293 F.3d 175,
185 (4th Cir. 2002).
During
closing
argument,
the
government
is
permitted
to
draw reasonable inferences from the evidence adduced during the
trial.
See United States v. Francisco, 35 F.3d 116, 120 (4th
Cir. 1994) (per curiam).
However, the prosecutor must adhere to
the “fundamental rule, known to every lawyer, that argument is
limited to the facts in evidence.”
F.3d
321,
omitted).
361
(4th
Cir.
2010)
United States v. Lighty, 616
(internal
quotation
marks
In this case, the prosecution was suggesting that the
jury make a reasonable inference.
The evidence connected Cole
and Jones with the incriminating text messages and put them near
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the BB&T close to the time of the robbery and in Washington,
D.C., near the location where the getaway vehicle was stolen.
The surveillance shots showed two bank robbers that matched the
general physical build of Cole and Jones.
Thus, the government
was asking the jury to make a reasonable inference that Jones
was wearing a wig, like his mask, to disguise himself.
This is not the type of misstatement that “so infected the
trial
with
unfairness
as
to
denial of due process.”
make
the
resulting
conviction
Caro, 597 F.3d at 624.
a
Moreover,
defense counsel actually addressed the government’s theory about
the
wig
validity
during
and
summation
pointing
for
defense,
for
the
jury
out
the
challenging
that
the
government
failed to produce any evidence that Jones wore a wig.
applying
a
plain
error
standard
of
review,
we
its
Thus,
conclude
that
defendants’ challenge to the government’s closing argument does
not avail them.
The district court committed no error, plain or
otherwise.
V.
Jones and Cole also challenge the district court’s denial
of
their
selection
post-trial
procedure
motion
used
by
for
the
Southern District of Virginia.
discovery
United
States
the
Courts
in
jury
the
For the reasons that follow,
this challenge is unavailing as well.
16
regarding
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African-Americans make up 11.6% of the population in the
Northern Virginia community; however, the 45-person pool from
which defendants' jury was drawn did not include any AfricanAmericans.
Jones moved before trial to strike the jury panel,
arguing that his Sixth Amendment right to a jury drawn from a
panel
reflecting
violated.
(“[T]he
trial
a
fair
cross-section
of
the
community
was
See Taylor v. Louisiana, 419 U.S. 522, 537 (1975)
Sixth
the
Amendment
opportunity
affords
to
have
the
defendant
the
jury
drawn
representative of the community . . . .”).
in
a
from
criminal
venires
To prevail on a
Sixth Amendment fair cross-section claim, a defendant must show
that a “‘distinctive’” group is underrepresented, generally and
on his particular venire, “in relation to the number of such
persons in the community,” and that such underrepresentation “is
due to systematic exclusion of the group in the jury-selection
process.”
Duren v. Missouri, 439 U.S. 357, 364 (1979).
That
is, defendant must demonstrate that the underrepresentation was
“inherent
in
Id. at 366.
of
voter
the
particular
jury-selection
process
utilized.”
Noting that the jury pool was drawn through the use
registration
lists,
motion to strike the panel.
the
district
court
denied
the
See United States v. Cecil, 836
F.2d 1431, 1454 (4th Cir. 1988) (en banc) (“We are reasonably
confident that every jury plan in this Circuit, as well as those
in most of the other Circuits, provides for the use of voter
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registration lists in the jury selection process . . . [which]
have
been
approved,
as
satisfying
the
fair
cross-section
requirement of the statute and the Constitution.”).
Two weeks after trial, defendants filed a post-trial motion
seeking
discovery
into
the
jury
Eastern District of Virginia.
selection
process
for
the
The district court held a hearing
and denied the motion for discovery, noting that “[w]e have a
random system of selecting juries”—voter registration lists—and
that
defendants
were
on
a
“fishing
expedition”
in
hopes
of
finding evidence to show that the absence of African Americans
on
their
jury
discrimination.
panel
was
due
to
systematic,
inherent
J.A. 698.
On appeal, defendants challenge the denial of the motion
for discovery, but not the denial of the motion to strike the
jury panel.
It is not completely clear whether defendants moved
below for discovery under the Jury Selection and Service Act
(“JSSA”) or the Sixth Amendment.
Either way, the motion was
untimely and we affirm its denial.
The JSSA codifies the Sixth Amendment right to have a jury
selected from a fair cross section of the community, stating
that federal litigants “have the right to grand and petit juries
selected at random from a fair cross section of the community in
the district or division wherein the court convenes.”
§ 1861.
28 U.S.C.
The JSSA requires each United States district court to
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"place into operation a written plan for random selection of . .
. petit jurors that shall be designed to achieve" a fair cross
section
of
the
community.
28
U.S.C.
§
1863(a).
Congress
specifically determined that the principal source of names for
the random selection should be either “the voter registration
lists or the lists of actual voters.”
28 U.S.C. § 1863(b)(2).
The JSSA provides procedures for challenging the required
written plan for jury selection.
“move
to
dismiss
the
The JSSA allows a defendant to
indictment
or
stay
the
proceedings”
in
order to challenge the district’s jury selection plan required
by the JSSA.
28 U.S.C. § 1867(a).
In criminal cases, the
defendant must file the motion “before the voir dire examination
begins, or within seven days after the defendant discovered or
could
have
discovered
whichever is earlier.”
.
.
Id.
.
the
grounds
[for
the
motion],
The JSSA allows the defendant to
have discovery of records relating to jury selection process
“during the preparation and pendency” of a motion to stay the
proceedings or dismiss the indictment under the statute.
U.S.C. § 1867(f).
28
To the extent Defendants were seeking relief
under the JSSA, they failed to do so until two weeks after the
trial, which made their claim clearly untimely.
The government
did not raise timeliness as an issue below, but the timeliness
requirement “is to be strictly construed, and failure to comply
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precisely with its terms forecloses a challenge under the Act.”
United States v. Bearden, 659 F.2d 590, 595 (5th Cir. 1981).
Federal Rule of Criminal Procedure 12(b)(3)—formerly Rule
12(b)(2)—governs motions raising a Sixth Amendment fair crosssection challenge, and, like JSSA motions, such motions must be
filed before trial.
See Davis v. United States, 411 U.S. 233,
241 (1973); United States v. Ballard, 779 F.2d 287, 295 (5th
Cir. 1986).
Failure to file the motion before trial amounts to
waiver of the fair cross-section claim, but a court may grant
relief from that waiver for good cause shown.
P. 12(e).
See Fed. R. Crim.
Defendants did not move for discovery with respect to
the jury selection process until 13 days after the verdict.
The
Eastern District of Virginia has used voter registration lists
as the source for jury pool selection for some time.
have
not
discovery
articulated
prior
to
Defendants
any
reason
why
they
failed
to
seek
trial,
before
the
court
spent
time
and
resources on jury selection and trial.
Likewise, defendants
have not articulated any reason to support their assertion that
African Americans are being systematically excluded during the
jury selection process.
See United States v. Ovalle, 136 F.3d
1092, 1108 (6th Cir. 1998) (rejecting jury selection claim where
defendants
“did
not
raise
such
a
claim
until
completed and they began their direct appeal”).
20
the
trial
was
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Accordingly, we affirm the denial of defendants’ post-trial
motion for discovery as to the fairness of the jury selection
process.
VI.
Finally,
Cole
objects
to
the
two-level
sentencing
enhancement imposed by the district court for obstruction of
justice under U.S.S.G. § 3C1.1.
Section 3C1.1 provides for a
two-level increase in the base offense level if “the defendant
willfully obstructed or impeded, or attempted to obstruct or
impede,
the
administration
of
justice
with
respect
to
the
investigation, prosecution, or sentencing of the instant offense
of conviction,” if “the obstructive conduct related to . . . the
defendant’s offense of conviction.”
U.S.S.G. § 3C1.1.
The Presentence Report (“PSR”) recommended application of
the
enhancement
because
Cole
presented
defense which the jury rejected.
a
Roberts,
Washington,
D.C.
an
employee
Roberts
at
alibi
At trial, Cole called two
witnesses to substantiate his alibi defense.
Michelle
fabricated
Fort
testified
First, Cole called
Stanton
that
apartments
when
in
prospective
residents come to inquire about the apartments, they are asked
to fill out a visitation card.
Roberts indicated that her files
contained
bearing
a
visitation
card
Cole’s
name,
and
the
government stipulated that the handwriting on the card in fact
belonged to Cole.
In addition to his name, Cole wrote the date
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and the time of day—purportedly 2:10 p.m. on the day of the
robbery which was approximately the time that the bank robbers
were fleeing the BB&T.
Roberts testified that when a prospect
fills out the front side of the visitation card, an employee
fills out the reverse side.
Cole’s card had not been completed
by a Fort Stanton employee.
Roberts, who was not there when the
card
was
filled
accuracy.
out,
was
therefore
unable
to
verify
its
Cell phone analysis placed Cole near Fort Stanton
around 2:40 p.m.
Second,
Cole
called
automobile service shop.
Charles
Ashford,
the
owner
of
an
He testified that Cole appeared at
1:44 p.m. on the day of the robbery to pick up his girlfriend’s
car.
two
On cross-examination, however, Ashford admitted that about
weeks
before
trial,
he
told
police
that
he
could
not
remember who picked up the car.
The PSR recommended assessing an enhancement under U.S.S.G.
§ 3C1.1 on the basis that “Cole . . . presented material[ly]
false information in the form of false and fabricated alibis,
which
was
a
willful
attempt
to
obstruct
or
impede
the
administration of justice with respect to the investigation and
prosecution of the instant offense.”
J.A. 744.
Cole objected
to the PSR’s recommendation that an enhancement be imposed.
district
court
concluded
properly
assessed,”
J.A.
that
710,
“the
and
22
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sentenced
factors
Cole
The
[are]
within
the
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guidelines range to a term of 144 months.
issued
its
judgment
and
a
Statement
of
The district court
Reasons,
filed
under
seal, expressly “adopt[ing] the presentence investigation report
without change.”
Cole contends that the district court failed to make the
requisite
findings
enhancement.
of
fact
We disagree.
to
support
the
U.S.S.G.
§
3C1.1
The court adopted the PSR, which set
forth sufficient factual findings to satisfy U.S.S.G. § 3C1.1.
See U.S.S.G. § 3C1.1 cmt. 4(B) (explaining that “producing or
attempting to produce a false, altered, or counterfeit document
or
record
during
an
official
investigation
or
judicial
proceeding” is covered conduct under U.S.S.G. § 3C1.1); United
States v. Walker, 29 F.3d 908, 911 (4th Cir. 1994) (recognizing
that the district court may satisfy the duty to make factual
findings by adopting the findings in the PSR).
Accordingly, we
reject this argument.
VII.
For the foregoing reasons, we affirm the convictions and
sentences of the defendants. 2
AFFIRMED
2
Jones filed a motion for leave to submit a supplemental
pro se reply brief and a motion to supplement that brief.
We
grant the motions but, having considered the issues raised
therein, deny him relief on that basis as well.
23
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