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United States v. Jones

United States Court of Appeals, Eighth Circuit

March 27, 2019

United States of America Plaintiff - Appellee
v.
Julius Lamon Jones Defendant-Appellant

          Submitted: December 13, 2018

          Appeal from United States District Court for the Eastern District of Missouri - Cape Girardeau

          Before SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.

          SMITH, CHIEF JUDGE.

         A jury 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[1] 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.

         I. Background

         "We 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)).

         A. Underlying Facts

         Lee 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.

         On the 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 store.

         Sawyer 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. They stopped.

         The 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.

         Sawyer 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 brother Dontario.

         Kennett 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.

         After 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.

         Blytheville 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.

         Osceola 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.

         The 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.[2]

         Arkansas 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.

         B. Procedural History

         Jones 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").

         A few 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.

         My 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 ...

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