US v. Darius Freeman


UNPUBLISHED PER CURIAM OPINION filed.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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Appeal: 15-4329 Doc: 45 Filed: 02/24/2017 Pg: 1 of 7 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4329 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DARIUS DONNELL FREEMAN, Defendant -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 February 24, 2017 Appeal: 15-4329 Doc: 45 Filed: 02/24/2017 Pg: 2 of 7 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. 2 Appeal: 15-4329 Doc: 45 Filed: 02/24/2017 Pg: 3 of 7 PER CURIAM: Darius Donnell Freeman and Wincy Joseph appeal their convictions for armed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 3 Appeal: 15-4329 Doc: 45 Filed: 02/24/2017 Pg: 4 of 7 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. 4 In Appeal: 15-4329 Doc: 45 Filed: 02/24/2017 Pg: 5 of 7 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.), 5 Appeal: 15-4329 Doc: 45 Filed: 02/24/2017 Pg: 6 of 7 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 Appeal: 15-4329 Doc: 45 Filed: 02/24/2017 Pg: 7 of 7 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 7

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