Submitted: December 13, 2018
from United States District Court for the Eastern District of
Missouri - Cape Girardeau
SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.
convicted Julius Lamon Jones of interference with commerce by
threat or violence ("Hobbs Act robbery"), in
violation of 18 U.S.C. § 1951, and possession of a
firearm in furtherance of a crime of violence (COV), in
violation of 18 U.S.C. § 924(c). On appeal, Jones argues
that the district court erred in denying his motion for
mistrial based on a government witness's response to his
counsel's questioning. He also argues that the district
court plainly erred in not granting a judgment of acquittal
on the ground that his Hobbs Act robbery conviction is not a
COV as defined in § 924(c). We affirm.
recite the facts in the light most favorable to the
jury's verdict." United States v. Daniel,
887 F.3d 350, 353 (8th Cir. 2018) (quoting United States
v. Payne-Owens, 845 F.3d 868, 870 n.2 (8th Cir. 2017)).
Sawyer managed Curt's Grocery, a small convenience store
in Kennett, Missouri. Prior to July 1, 2015, Sawyer was
familiar with three men who frequented his store: Jones;
Jones's brother, Dontario Jones ("Dontario");
and Antonio Brown. Sawyer knew Jones and Dontario's
family and had spoken to Jones and Dontario on numerous
occasions in the store. During a two-year period, Sawyer
spoke to Brown almost every day because of Brown's prior
relationship with a store employee. Sawyer was familiar with
all three men's voices.
night of July 1, 2015, just prior to closing, Sawyer went to
lock the store's front door. He saw Brown approaching.
Sawyer permitted Brown to enter the store because he knew
Brown well. Once inside the store, Brown spoke to Sawyer and
bought two items, including the last bottle of a certain
beverage. Tracey Hon, a cashier, handled Brown's
purchase. She also knew Brown because he frequented the
noticed that Brown had purchased the last bottle on the shelf
and began walking to the storeroom to check inventory for
restocking. Before reaching the storeroom, Sawyer heard the
front door violently open, as if someone had kicked it in.
Two men wearing facemasks and displaying handguns ran into
the store. The first man ran to the cashier's area and
threw Hon to the floor. The second man ran to an area next to
a coin-operated carnival machine. Without speaking, both men
opened fire on Sawyer. Four bullets struck Sawyer, causing
him to fall to the floor. Sawyer shouted that he would tell
them the money's location if they would quit shooting.
second man to enter the store approached Sawyer and demanded
that Sawyer empty his pockets. Sawyer complied. Sawyer
carried a 9 mm Kel-Tec pistol. The man took Sawyer's
pistol. Sawyer then told Hon where the moneybags were
located. Hon gave two moneybags to the first man, who had
demanded the store's money. One of the moneybags was tan,
and the other was green with "BancorpSouth" printed
on it. Hon also opened the cash register drawers, and the
first man took the cash. The cash registers and the two
moneybags contained approximately $5, 000. Sawyer kept a
shotgun underneath the front counter. The first man grabbed
it and headed for the door, but before leaving, he shot at
Hon, barely missing her head. Both men left the store.
William Bundy, a store employee, witnessed the robbery and
called 911. Bundy reported seeing a gray car leave the
store's parking lot after the robbery.
told investigating officers that he recognized the two
men's voices when they shouted during the robbery. Sawyer
believed they had come to the store on other occasions. He
identified the first man as Jones and the second man as his
Police Officer Phillip Caldwell received a police dispatch
alerting him to a robbery and shooting at Curt's Grocery.
Officer Caldwell was informed that the car involved in the
robbery was a gray or silver Toyota, traveling south. Officer
Caldwell identified the car and gave chase to the Arkansas
border, where Arkansas law enforcement continued the chase.
the car crossed the Arkansas state line, Mississippi County
Deputy Sheriff Dale Stracener attempted to block the road
with his patrol car, but the car evaded the obstruction and
continued toward Blytheville, Arkansas. The car's
occupants shot at Officer Stracener and other officers
attempting to stop the vehicle. Officer Stracener returned
gunfire. As it entered Blytheville, the car left the roadway
and crashed in a muddy field. The three occupants fled on
foot. Officer Stracener gave chase, finding the vehicle's
driver under some bushes. The driver was identified as Brown.
resident Steven Ellis ("Steven") witnessed the
chase. He later saw a man in a neighborhood running down the
street apparently talking on a cell phone. Steven did not
recognize the man as a neighborhood resident. He watched as a
yellow Cadillac Escalade picked up the man and drove away.
Steven reported his observations to the police department,
including the Cadillac Escalade's license plate number.
He told the police that the Cadillac Escalade was traveling
south toward Osceola, Arkansas.
Police Department Officer Chris Ellis heard police dispatch
relay Steven's information, including the car's
license plate number. Officer Ellis was familiar with the car
and the license plate number. Officer Ellis and another
officer intercepted the Cadillac Escalade as it entered
Osceola. After stopping the vehicle, the officers identified
the female driver as Reshawn Jones and the passenger as
Jones, her husband. After Jones got out of the vehicle,
Officer Ellis noticed that Jones's pants were covered
with dirt and mud. Without prompting, Jones stated, "I
haven't done anything. I'm just coming from Kennett
gambling." Jury Tr. Proceedings, Vol. I, at 232,
United States v. Jones, No. 1:16-cr-00035 (E.D. Mo.
Mar. 13, 2017), ECF No. 78. After detaining Jones, Officer
Ellis drove to Jones's home in Osceola. Upon his arrival,
he found Brown's Chevrolet Tahoe.
officers who searched the Cadillac Escalade recovered a green
BancorpSouth moneybag and a tan BancorpSouth moneybag. Sawyer
later identified these moneybags as belonging to Curt's
Grocery. The green moneybag contained $1, 783 in cash, and
the tan moneybag contained $350 in cash.
State Police Officer Scott Pillow searched the crashed Toyota
Camry at the scene. He found several firearms in and around
the vehicle, including the pistol stolen from Sawyer and the
store's shotgun. Officer Pillow also found three ski
masks in the car. One of those masks had DNA matching
Jones's as a major contributor.
was charged with Hobbs Act robbery, aided and abetted by
Brown and Dontario ("Count I"). He was also charged
with possession of a firearm in furtherance of a COV, aided
and abetted by Brown and Dontario ("Count II").
days prior to trial, the government sent Jones's attorney
an e-mail, which provided in relevant part:
By the way, Lee [Sawyer] and Tracey [Hon] both knew Brown
very well. Sawyer knew both Jones brothers very well and will
testify that he recognized their voices that night. He told
Kennett police officer Waynick, as he was being loaded in the
ambulance that, "Those were the same two . . . that
robbed me the last time." Turns out that Lee [Sawyer]
was robbed about a year earlier and that he recognized the
voices then as the two Jones brothers. No arrests out of that
case, even though it was reported. I don't intend to
refer to the prior robbery and I've instructed Lee
[Sawyer] not to answer any question with an answer about the
prior robbery unless you ask it. I intend to call
Officer Waynick and ask him a leading question, "Did Lee
Sawyer tell you that he recognized the voices of the two men
that robbed him?" That question, which Waynick will
answer yes, will not disclose the prior robbery. If you
want to ask any followup, I'll leave that to you. Just
wanted to make sure you knew how deep the water was.
entire case will be based on the following:
1) Sawyer's voice identification of both Jones brothers,
including which one did what.
2) Hon's partial facial ID of Julius [Jones].
3) Julius [Jones's] DNA on the ski mask in ...