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Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:10-cr-20896-JAL-2.
For United States of America, Plaintiff - Appellee: Roy K. Altman, Kevin Quencer, Wifredo A. Ferrer, Amanda Perwin, Kathleen Mary Salyer, Anne Ruth Schultz, U.S. Attorney's Office, Miami, FL.
For Quartavious Davis, Defendant - Appellant: Anne Margaret Hayes, Law Office of Anne M. Hayes, Cary, NC; Jacqueline Shapiro, Attorney at Law, Miami, FL.
For Aclu of Florida, Amicus Curiae: Benjamin Stevenson, ACLU of Florida, Pensacola, FL; Nathan Freed Wessler, New York Civil Liberties Union (NYCLU), New York, NY; Maria Kayanan, ACLU Foundation of Florida, Inc., Miami, FL.
Before MARTIN, DUBINA, and SENTELLE,[*] Circuit Judges.
SENTELLE, Circuit Judge:
Appellant Quartavius Davis was convicted by a jury on several counts of Hobbs Act robbery, 18 U.S.C. § 1951(b)(1), (3), conspiracy, 18 U.S.C. § 1951(a), and knowing possession of a firearm in furtherance of a crime of violence, 18 U.S.C. § § 924(c)(1)(A)(ii) and 2. The district court entered judgment on the verdict, sentencing Davis to consecutive terms of imprisonment totaling 1,941 months. Davis appeals, assigning several grounds for reversal. His principal argument is that the court admitted location evidence based on stored cell site information obtained by the prosecution without a warrant, in violation of his Fourth Amendment rights. He assigns other grounds of error going to prosecutorial misconduct, evidentiary sufficiency, and sentencing. For the reasons set forth below, we hold
that there is no reversible error, although we do find merit in one argument that the sentence was improperly enhanced. We therefore affirm the judgment below in large part, but vacate a sentencing enhancement regarding " brandishing" a firearm.
On February 18, 2011, a grand jury for the Southern District of Florida returned a seventeen-count indictment against Davis and five co-defendants. Davis was named as a defendant in sixteen of the seventeen counts. Generally, the indictment charged violations of the Anti-Racketeering Act, 18 U.S.C. § 1951 (Hobbs Act), and conspiracy to violate the Hobbs Act. More specifically, the indictment charged Davis with conspiracy to engage in Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Counts 1, 15); Hobbs Act robbery, in violation of 18 U.S.C. § § 1951(a) and 2 (Counts 2, 4, 6, 8, 10, 13, 16); and with knowingly using, carrying, and possessing a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § § 924(c)(1)(A)(ii) and 2 (Counts 3, 5, 7, 9, 11, 14, 17).
As part of the pretrial proceedings, Davis moved to suppress electronic location evidence that the government had obtained " without a warrant," claiming that the obtaining of that evidence violated his Fourth Amendment rights. The district court denied the motion. Davis renewed the motion during trial, and the district court again denied it. These rulings give rise to Davis's principal claim on appeal, which we will discuss further below. The prosecution proceeded to offer evidence of two conspiracies to commit Hobbs Act robbery and that Davis was part of each conspiracy. The prosecution further presented evidence that the conspirators committed such robberies.
During the trial, one member of each conspiracy testified for the United States. Willie Smith (" Smith" ) testified as to the first conspiracy, encompassing six robberies at commercial establishments including a Little Caesar's restaurant, an Amerika Gas Station, a Walgreens drug store, an Advance Auto Parts store, a Universal Beauty Salon, and a Wendy's restaurant. Michael Martin (" Martin" ) testified as to the second conspiracy, encompassing the robbery of a Mayor's Jewelry store. Smith and Martin testified that Davis was involved in each robbery, where they wore masks, carried guns, and took items such as cigarettes and cash.
Additionally, an eyewitness, Edwin Negron, testified regarding Davis's conduct at Universal Beauty Salon and the adjacent Tae Kwon Do studio. He testified that Davis pointed a gun at his head, pushed a 77 year-old woman and Negron's wife to the ground, and took several items from Negron and others. Another eyewitness, Antonio Brooks, testified that he confronted Davis and his accomplices outside the Wendy's restaurant after that robbery and tried to write down the license plate of their getaway car. Brooks testified that Davis fired his gun at him, and that he returned fire towards the car.
Beyond the testimony, the government produced additional evidence. Surveillance videos showed a man matching Davis's description participating in the robberies at Walgreens, Advance Auto Parts, Wendy's, and Mayor's Jewelry. Smith and Martin identified Davis on the videos. DNA shown to be Davis's was recovered from the getaway car used to flee the scene of the Universal Beauty Salon robbery and the Mayor's Jewelry store robbery.
The prosecution also offered records obtained from cell phone service providers evidencing that Davis and his co-defendants had placed and received cell phone calls in close proximity to the locations of each of the charged robberies around the
time that the robberies were committed, except for the Mayor's Jewelry store robbery. Davis preserved his objection to the cell phone location evidence and his claim that the government's obtaining such evidence without a warrant issued upon a showing of probable cause violated his rights under the Fourth Amendment.
The court submitted all counts to the jury. During jury arguments, the prosecutor made several questionable statements, including some apparently vouching for the credibility of the government's witnesses. Upon objections by the defense, the court instructed the jury to disregard the statements by the prosecution. The jury returned a verdict of guilty on all counts.
Subsequently, the district court sentenced Davis on all counts, and conducted a careful sentencing analysis on the record. Of particular note to the issues in this appeal, in the sentence on Count 3, which charged the use and carrying of a firearm during and in relation to a crime of violence, the court imposed a seven-year statutory mandatory enhancement pursuant to 18 U.S.C. § 924(c)(1)(A)(ii), which provides for such enhancement where " the firearm is brandished . . . ." On Counts 5, 7, 9, 11, 14, and 17, which also charged the defendant with using and carrying a firearm during and in relation to a crime of violence, the court imposed a " second or subsequent" enhancement required by 18 U.S.C. § 924(c)(1)(C)(i), as each of these offenses was subsequent to the similar violation charged in Count 3. Noting that 18 U.S.C. § 924(c)(1)(D)(ii) requires consecutive sentences, the court imposed a total term of imprisonment of 1,941 months, approximately 162 years.
Davis raises several allegations of error on appeal. First, he argues that the district court's denial of his motion to suppress the cell site location information and the admission of that evidence violated his constitutional rights under the Fourth Amendment. Second, he argues that the prosecutor's misconduct during closing argument rendered his trial unfair, entitling him to a new trial. Third, he raises sentencing arguments, contending that the district court's applications of the mandatory penalty for second or subsequent offenses and for brandishing a firearm on Count 3 were in violation of his Sixth Amendment rights, and that the 162-year sentence of imprisonment constituted a cruel and unusual punishment in violation of his Eighth Amendment rights. Further, he raises an issue as to the sufficiency of evidence on the aiding and abetting the use of a firearm charge in connection with a crime of violence in Count 17. Finally, he makes a broad challenge that " the cumulative effect and prejudice arising from multiple trial errors compels reversal." We consider each of the listed arguments in turn.
I. Fourth Amendment Issue
Davis's Fourth Amendment argument raises issues of first impression in this circuit, and not definitively decided elsewhere in the country. The evidence at issue consists of records obtained from cell phone service providers pursuant to the Stored Communications Act (" SCA" ), 18 U.S.C. § § 2703(c) and (d). Under that Act, the government can obtain from providers of electronic communication service records of subscriber services when the government has obtained either a warrant, § 2703(c)(1)(A), or, as occurred in this case, a court order under subsection (d), see § 2703(c)(1)(B). The order under subsection (d) does not require the government to show probable cause.
The evidence obtained under the order and presented against Davis in the district court consisted of so-called " cell site location information." That location information
includes a record of calls made by the providers' customer, in this case Davis, and reveals which cell tower carried the call to or from the customer. The cell tower in use will normally be the cell tower closest to the customer. The cell site location information will also reflect the direction of the user from the tower. It is therefore possible to extrapolate the location of the cell phone user at the time and date reflected in the call record. All parties agree that the location of the user will not be determined with pinpoint precision, but the information is sufficiently specific that the prosecutor expressly relied on it in summing up to the jury in arguing the strength of the government's case for Davis's presence at the crime scenes. Indeed, it is not overstatement to say that the prosecutor stressed that evidence and the fact that the information reflected Davis's use of cell phone towers proximate to six of the seven crime scenes at or about the time of the Hobbs Act robberies.
Davis objected to the admission of the location information in the district court and now argues to us that the obtaining of that evidence violated his constitutional rights under the Fourth Amendment. That Amendment, of course, provides that " no Warrants shall issue, but upon probable cause, supported by Oath or Affirmation . . . ." U.S. Const. Amend. IV. It is a " basic principle of Fourth Amendment law" that searches and seizures without a warrant " are presumptively unreasonable." See, e.g., Groh v. Ramirez, 540 U.S. 551, 559, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004). The SCA does provide for governmental entities requiring records from communication service providers by warrant under subsection (c)(1)(A). However, as noted above, the prosecution obtained the evidence against Davis, not by warrant under subsection (c)(1)(A), but by order under subsection (d). As further noted above, that section does not require probable cause, but only a showing " that there are reasonable grounds to believe that the . . . records or other information sought, are relevant and material to an ongoing criminal investigation." 18 U.S.C. § 2703(d) (emphasis added). Davis contends that the obtaining of the evidence required a warrant upon probable cause. The government argues that the evidence is not covered by the Fourth Amendment and was properly obtained under a court order.
As we suggested above, the question whether cell site location information is protected by the Fourth Amendment guarantees against warrantless searches has never been determined by this court or the Supreme Court. Two circuits have considered the question, but not in the context of the use of the evidence in a criminal proceeding. Also, one of those opinions issued before the Supreme Court's decision in United States v. Jones,
__ U.S. __, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), the most relevant Supreme Court precedent.
The Third Circuit in In re Application of U.S. for an Order Directing a Provider of Elec. Commc'n. Serv. to Disclose Records to Gov't, 620 F.3d 304, 317-18 (3d Cir. 2010), heard the government's appeal from an order of a magistrate judge declining to direct a service provider to furnish information by order under subsection (d) and requiring instead that the government pursue a warrant upon probable cause under subsection (c)(1)(A). Briefly put, that circuit did vacate the magistrate judge's denial, but opined that the magistrate judge in appropriate circumstances might " require a warrant showing probable cause . . . ." Id. at 319.
The Fifth Circuit, in In re Application of U.S. for Historical Cell Site Data, 724 F.3d 600, 612 (5th Cir. 2013), reviewed an application in a similar posture. In the Fifth Circuit case, the district court had denied orders for which the government
had applied under subsection (d). The Fifth Circuit clearly held that compelling production of the records on the statutory " reasonable grounds" basis is not " per se unconstitutional." Id. at 602. We will not review at this point the reasoning of either of our sibling circuits, given that the context of the cases is different, and one of those circuits opined before ...