US v. Darius Freeman

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:13-cr-00080-RLV-DSC-1. Copies to all parties and the district court. [1000030011]. [15-4329, 15-4330]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4329

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARIUS DONNELL FREEMAN,
Defendant - Appellant.

No. 15-4330

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WINCY JOSEPH, a/k/a Joseph Wincey,
Defendant - Appellant.

Appeals from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:13-cr-00080-RLV-DSC-1; 5:13-cr-00080-RLV-DSC2)

Submitted:

August 23, 2016

Decided:

Before KING, DUNCAN, and AGEE, Circuit Judges.

February 24, 2017

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Affirmed by unpublished per curiam opinion.

C. Melissa Owen, TIN, FULTON, WALKER & OWEN, PLLC, Charlotte, North
Carolina; Brian M. Aus, BRIAN AUS, ATTORNEY AT LAW, Durham, North
Carolina, for Appellants. Jill Westmoreland Rose, United States
Attorney, Anthony J. Enright, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Darius

Donnell

Freeman

and

Wincy

Joseph

appeal

their

convictions for armed bank robbery, in violation of 18 U.S.C.
§§ 2113(a),

(d),

2

(2012)

(Count

1),

and

using,

carrying,

brandishing, and possessing a firearm during, in relation to, and
in furtherance of a crime of violence (bank robbery), in violation
of 18 U.S.C. §§ 924(c), 2 (2012) (Count 2).
his

convictions

for

violation

of

carrying,

brandishing,

relation

to,

18

two

U.S.C.

and

in

additional

§ 2119
and

(2012)

possessing

furtherance

of

Freeman also appeals

counts:
(Count

carjacking,
3),

a

firearm

a

crime

and

in

using,

during,
of

in

violence

(carjacking), in violation of 18 U.S.C. § 924(c) (Count 4).

They

argue: (1) the district court erred in denying Freeman’s motion to
suppress; (2) Freeman’s and Joseph’s § 924(c) convictions based on
bank robbery must be vacated because bank robbery is not a crime
of violence; (3) the district court plainly erred in providing
jury instructions that defined bank robbery as a crime of violence;
(4) Freeman’s second § 924(c) conviction must be vacated because
carjacking is not a crime of violence; and (5) the district court
plainly

erred

in

providing

jury

carjacking as a crime of violence.

instructions

that

defined

We affirm.

As to the first claim, when reviewing a district court’s
ruling on a motion to suppress, we review factual findings for
clear error and legal determinations de novo, construing the
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evidence in the light most favorable to the prevailing party.
United States v. Lull, 824 F.3d 109, 114-15 (4th Cir. 2016).
“[T]he

reliability

of

relevant

testimony

typically

within the province of the jury to determine.”
Hampshire,

132

S.

Ct.

716,

720

(2012).

falls

Perry v. New

Accordingly,

the

Constitution protects a defendant from a conviction based on
evidence

of

questionable

reliability

not

by

automatically

excluding such evidence, “but by affording the defendant means to
persuade

the

jury

that

unworthy of credit.”

the

evidence

Id. at 723.

should

be

discounted

as

Due process is implicated only

when the “evidence is so extremely unfair that its admission
violates

fundamental

conceptions

quotation marks omitted).

of

justice.”

Id.

(internal

“When no improper law enforcement

activity is involved,” the reliability of such evidence can be
proven through normal trial procedures, such as vigorous crossexamination,

special

jury

instructions

where

needed,

and

requirement that guilt be proven beyond a reasonable doubt.

the
Id.

at 721.
Here, Freeman contends that the photographic lineup in which
the

victim

identified

Freeman

as

the

carjacker

was

unduly

suggestive and the identification should have been suppressed.

He

bases this claim on his assertion that the victim had been informed
by police beforehand that her car was linked to a bank robbery and
she had previously been shown photographs of the bank robbery.
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In

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particular, Freeman argues that the district court clearly erred
in finding that the police did not show the victim any bank robbery
photographs before conducting the photo lineup.
We perceive no clear error.

During the suppression hearing,

the victim testified that she did not see photographs of the bank
robbery until after the photo lineup.

But a few days before the

photo lineup, a detective who had spoken with the victim on the
telephone sent an email to another detective saying that “[the
victim] states that she has viewed the bank robbery pictures and
is 100% positive [one of the robbers] is the one that carjacked
her.”

(J.A. 217).

Freeman argues that the victim’s testimony is

contradicted by the email.

But even allowing this point, there is

no evidence that police showed the victim the robbery pictures.
These photos had been displayed by local news media, and all four
of the police officers who testified at the suppression hearing
swore that they did not show the victim any bank robbery pictures
before the photo lineup. Therefore, we conclude the district court
did

not

clearly

err

in

finding

the

identification

was

not

impermissibly tainted, and did not err in denying Freeman’s motion
to suppress.
Turning

to

the

questions

of

whether

bank

robbery

and

carjacking are crimes of violence, because the Appellants did not
raise these issues in the district court, our review is for plain
error.

See United States v. McNeal, 818 F.3d 141, 148 (4th Cir.),
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cert. denied, 137 S. Ct. 164 (2016), and cert. denied sub nom.
Stoddard v. United States, 137 S. Ct. 164 (2016).

To prevail on

plain-error review, “a defendant must show (1) that an error was
made; (2) that the error was plain; and (3) that the error affected
his substantial rights.”

Id. (internal quotation marks omitted).

Even if those three prongs are satisfied, we may exercise our
discretion to correct a plain error “only when necessary to prevent
a miscarriage of justice or to ensure the fairness, integrity or
public

reputation

of

judicial

proceedings.”

Id.

(internal

quotation marks omitted).
We have held that bank robbery is a crime of violence under
the force clause of § 924(c)(3)(A).

McNeal, 818 F.3d at 153.

McNeal directly forecloses the Appellants’ argument that bank
robbery is not a crime of violence for purposes of their § 924(c)
convictions and their claim of an erroneous jury instruction, and
these claims therefore entitle them to no relief.
Finally, we recently held that carjacking is a crime of
violence

under

the

force

clause

of

§ 924(c)(3)(A).

United

States v. Evans, ___ F.3d ___, ___, No. 16-4094, 2017 WL 444747,
at *1 (4th Cir. Feb. 2, 2017).

Thus, Freeman’s argument that

carjacking is not a crime of violence for purposes of his second
§ 924(c)

conviction

and

his

challenge

instructions fail under Evans.

6

to

the

relevant

jury

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Accordingly, we affirm the judgment of the district court.
We

dispense

with

oral

argument

because

the

facts

and

legal

contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
AFFIRMED

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