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United States v. Hare

United States Court of Appeals, Fourth Circuit

April 19, 2016

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
SHANE ELLIOTT HARE, a/k/a Play, Defendant - Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
GREGORY ANTOINE WILLIAMS, a/k/a " J", Defendant - Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
ANTONIO EDWARDS, a/k/a Tank, Defendant - Appellant

         Argued January 28, 2016.

Page 94

          Appeals from the United States District Court for the District of Maryland, at Greenbelt. (8:13-cr-00650-DKC-1; 8:13-cr-00650-DKC-2; 8:13-cr-00650-DKC-3). Deborah K. Chasanow, Senior District Judge.

         ARGUED:

         Michael Daniel Montemarano, MICHAEL D. MONTEMARANO, PA, Columbia, Maryland, for Appellants.

         Rod J. Rosenstein, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

         ON BRIEF:

         Michael Lawlor, LAWLOR & ENGLERT, LLC, Greenbelt, Maryland, for Appellant Williams.

         Jonathan Alan Gladstone, Annapolis, Maryland; Marta K. Khan, THE LAW OFFICE OF MARTA K. KHAN, LLC, Baltimore, Maryland, for Appellant Edwards.

         Jonathan Alan Gladstone, Annapolis, Maryland; Marta K. Khan, THE LAW OFFICE OF MARTA K. KHAN, LLC, Baltimore, Maryland, for Appellant Edwards.

         Before SHEDD and FLOYD, Circuit Judges, and Loretta C. BIGGS, United States District Judge for the Middle District of North Carolina, sitting by designation. Judge Floyd wrote the opinion, in which Judge Shedd and Judge Biggs joined. Judge Shedd wrote a separate concurring opinion.

          OPINION

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          FLOYD, Circuit Judge:

         A jury convicted Appellants Shane Hare, Gregory Williams, and Antonio Edwards of drug, robbery, and firearm offenses based on their participation in a plan to rob a cocaine " stash house." Unbeknownst to Appellants, the stash house did not actually exist, but was fabricated by undercover federal agents as part of a sting operation. Appellants challenge the district court's denial of their motion for discovery into potential race discrimination by law enforcement and motion to dismiss the indictment on due process grounds. They also challenge various other aspects of their convictions. For the reasons set forth below, we affirm.

         I.

         In February 2013, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) received information from a confidential informant identifying Marvin Bowden as an armed drug trafficker and suspect in several burglaries, armed robberies, and home invasions in Prince George's County, Maryland. Based on this information, ATF and the Prince George's County Police Department (PGPD) initiated an undercover operation whereby they would present Bowden with the opportunity to rob a fictitious cocaine stash house and, if all went according to plan, ultimately arrest him and any accomplices for conspiring to traffic drugs and related crimes.[1]

         On April 19, 2013, PGPD undercover detective William Weathers met with Bowden

Page 96

to inform him of a potential opportunity to rob a drug stash house. Detective Weathers explained that he knew someone involved in drug trafficking who was looking for a group of people to help him rob a stash house containing several " bricks" of cocaine. J.A. 42, 246. In response, Bowden stated " that's what I do!" several times and indicated that he usually worked with two or three other people. J.A. 42. Bowden and Detective Weathers discussed the robbery further before Bowden left, telling Detective Weathers to let him know how many people to bring.

         On May 3, 2013, Detective Weathers again met with Bowden and introduced him to ATF Special Agent Christopher Rogers, also acting undercover.[2] Agent Rogers told Bowden that he was a drug courier for a Mexican cartel whose job was to transport 5 kilograms of cocaine each month from the cartel's stash house in Baltimore to Richmond, Virginia. Agent Rogers explained that he wanted to rob the stash house because he was unhappy with his pay and needed an experienced crew because the house, which contained an additional 10 to 15 kilograms of cocaine, was guarded by three heavily armed men. Bowden agreed to commit the robbery, stating that he had a crew of three or four people and " that's what we do for a living." J.A. 43. Agent Rogers asked if Bowden had weapons and Bowden confirmed that he did, again stating, " that's all we do!" Id.

         On May 9, 2013, Agent Rogers met with Bowden and his crew, consisting of Appellants Hare, Williams, and Edwards. Bowden himself recruited Appellants, none of whom were previously known to ATF. At the meeting, Agent Rogers repeated his story of being a disgruntled drug courier looking for a crew to rob his cartel's stash house. Agent Rogers stated that he wanted to keep 2 kilograms of cocaine for himself but the crew could divide whatever else they were able to seize, emphasizing that the stash house contained 10 to 15 kilograms of cocaine. He also cautioned that the stash house guards had a " chopper" (i.e., an automatic weapon). The crew (led by Edwards) discussed how to execute the robbery. They decided that the fastest two, Hare and Williams, would enter first while shouting " police!" and secure the chopper. Bowden and Edwards would follow and secure the guards using zip ties and duct tape. If necessary, Appellants and Bowden would shoot the guards below the waist but would not shoot to kill. When Agent Rogers asked if Appellants had weapons, Edwards replied " [e]verybody got their own gun," and Williams confirmed, " [t]hat ain't no problem." J.A. 780. Edwards also proposed a " Plan B" in case they were unable to enter the stash house. Under Plan B, Bowden and Appellants would pretend to rob Agent Rogers of his 5 kilogram shipment, and the group would split the lesser amount. Agent Rogers stated that he could procure a rental car for their getaway. Appellants agreed to the plan and gave Agent Rogers their phone numbers.

         Appellants, Bowden, and Agent Rogers next met on May 14, 2013. Agent Rogers informed the group that his next drug pick-up would be at 1:00 p.m. two days later, on May 16, which is when the robbery would occur. Edwards confirmed that the group was " ready." J.A. 795. Agent Rogers advised that they should be assembled by 10:00 a.m. on the day of the robbery, and Bowden proposed staying in a hotel the night before so they would already be together. The crew (again led by Edwards) reviewed the plan (i.e., Plan

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A), including that once Agent Rogers entered the stash house to pick up his shipment, Bowden and Appellants would burst in and Agent Rogers would " hit the floor" to avoid getting shot. J.A. 798. Bowden and Appellants would also wear gloves and get haircuts to avoid leaving fingerprints or DNA. When Agent Rogers asked about their weapons, Williams confirmed that they would bring " hand tools" and potentially an automatic pump shotgun. The group again discussed Plan B if Appellants and Bowden could not enter the stash house to execute Plan A.

         On May 16, 2013, Bowden and Appellants met Agent Rogers at a storage facility, which was the predetermined staging location for the robbery. The crew confirmed that they were ready to proceed and reviewed both Plan A and Plan B. Williams confirmed that they would be armed. Agent Rogers then gave the take-down signal and ATF agents surrounded the group, arresting Bowden and Appellants. ATF agents recovered a Kimber brand firearm from inside a locked glove box in Bowden's vehicle, a Beretta brand firearm that Hare had thrown under the vehicle, a black mask, and a pair of gloves.

         Appellants were each charged with the same four counts: (1) conspiracy to interfere with commerce by robbery (i.e., a " Hobbs Act" robbery), in violation of 18 U.S.C. § 1951(a); (2) conspiracy to possess with the intent to distribute cocaine, in violation of 21 U.S.C. § 846; (3) conspiracy to possess a firearm in furtherance of a drug trafficking crime or a crime of violence, in violation of 18 U.S.C. § 924(o); and (4) possession of a firearm in furtherance of a drug trafficking crime or a crime of violence, in violation of 18 U.S.C. § 924(c).[3] Edwards was additionally charged with being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1).

         Before trial, Appellants moved for discovery into whether race played a role in ATF's decision to target Bowden and Appellants for a stash house sting operation. The district court denied the motion, though it ordered the government to produce to Appellants one page out of ATF's training materials for conducting such operations. Appellants also moved to dismiss the indictment on the ground that the government had engaged in outrageous conduct that violated their due process rights. The district court denied this motion as well.

         After a seven-day trial, the jury returned a special verdict finding Appellants guilty on all counts. The district court sentenced Hare to 132 months of imprisonment, Williams to 150 months, and Edwards to 240 months. Appellants filed this appeal challenging, among other things, the district court's denial of their motion for discovery and motion to dismiss, as well as their convictions for the firearm offenses in Counts 3 and 4.

         II.

...


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