United States v. Demarcus Ivey
60 F.4th 99 (2023)
Rule of Law:
Hobbs Act robbery qualifies as a crime of violence under 18 U.S.C. § 924(c)(3)(A) because it requires intentional conduct involving actual or threatened physical force, and erroneous admission of impermissibly suggestive identification testimony or other evidence may be deemed harmless if other overwhelming evidence of guilt supports the conviction.
Facts:
- Shortly before 2:00 PM on September 10, 2009, two armed men, one taller with a light gray hoodie and a revolver, and one smaller with a darker gray hoodie and a semi-automatic pistol, entered Club Nikki's in Charlotte, North Carolina.
- The smaller man demanded money from manager Michael Johnson, then led him to the lobby, and later laid him on the floor, while the larger man demanded Johnson's cell phone.
- The two men took items, including keys, wallets, cell phones, and jewelry, from patrons and dancers.
- Hamilton heard the smaller man tell patron Adrian Youngblood to get on the floor; when Youngblood did not respond, the smaller man shot him once, then shot him again, killing him.
- Witnesses reported the suspects leaving in a green Jeep or a bluish-green pickup truck, prompting law enforcement to issue an alert for a dark blue Ford F-150.
- Officer Secondi spotted and pursued an older model Ford F-150 traveling at high speed, which subsequently crashed; the passenger, later identified as Demarcus Ivey, fled into the woods, and the driver, Kevin Bishop, Jr., fled on foot and was detained.
- Police found a revolver near the crash site, a light gray hoodie, a dark gray hoodie, and a knit cap with Ivey's DNA on them inside the truck, along with $355 cash and Hamilton's wallet; Bishop had Johnson's and Hamilton's cell phones and $23 cash.
- Ivey was apprehended 12-15 minutes after the initial robbery call, sweating and out of breath, and later found to have $186 cash and a business card with a probation officer's information (related to both Youngblood and Bishop) in his pockets.
Procedural Posture:
- On October 20, 2015, a federal grand jury indicted Demarcus Donte Ivey on one count of Hobbs Act robbery (18 U.S.C. § 1951) and one count of using a firearm in furtherance of a crime of violence resulting in death (18 U.S.C. §§ 924(c) and 924(j)(1)).
- Ivey filed a pretrial motion in the United States District Court for the Western District of North Carolina seeking to suppress eyewitness identifications and incriminating statements; the district court denied this motion.
- During the jury trial, the district court overruled Ivey's objection to testimony about a business card found on him, citing the 'best evidence rule'.
- Ivey sought to introduce expert testimony on eyewitness identification, but after the district court conditionally excluded it, Ivey's counsel affirmatively withdrew the expert witness.
- A jury found Ivey guilty of both counts charged in the indictment.
- The district court sentenced Ivey to 240 months of imprisonment on Count One and life imprisonment on Count Two, to run consecutively.
- Ivey, as the Defendant-Appellant, timely appealed his convictions and sentence to the United States Court of Appeals for the Fourth Circuit, with the United States of America as the Plaintiff-Appellee.
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Issue:
Does Hobbs Act robbery qualify as a 'crime of violence' under 18 U.S.C. § 924(c)(3)(A), which defines such a crime as a felony having as an element the use, attempted use, or threatened use of physical force, and does the Supreme Court's decision in Borden v. United States undermine this classification?
Opinions:
Majority - Thacker
Yes, Hobbs Act robbery qualifies as a 'crime of violence' under 18 U.S.C. § 924(c)(3)(A), and the Supreme Court's decision in Borden v. United States does not undermine this classification. The Fourth Circuit reaffirms its holding in United States v. Mathis that Hobbs Act robbery is a crime of violence under the force clause because it requires intentional conduct, not reckless conduct, to establish the use or threatened use of physical force. The statutory text is silent on mens rea, implying a common-law intent element, and the 'fear of injury' component is equivalent to 'intimidation,' necessarily involving a threatened use of physical force. Regarding the evidentiary challenges, the court held that the show-up identification procedure was impermissibly suggestive (Ivey was the only individual, handcuffed, emerged from a police car, and witnesses were told he fit a description) and the subsequent identifications by Johnson and Simmons were not sufficiently reliable (Johnson's inconsistent description of Ivey's clothing, Simmons' limited opportunity to view, lack of certainty questions, and delayed timing of the show-ups). Additionally, the district court abused its discretion by admitting Detective Burke's testimony about the business card's contents in violation of the best evidence rule, as no exception to Rule 1004 was properly established. However, these errors were ultimately harmless beyond a reasonable doubt because the overwhelming properly admitted evidence supported Ivey's conviction. This evidence included Ivey's flight from the crashed truck, his apprehension minutes after the incident, the matching clothing found with his DNA in the truck, the presence of victims' items and cash, and Officer Secondi's identification of Ivey as the passenger. The cumulative error doctrine also did not warrant reversal given the strength of the government's evidence. Finally, Ivey waived his challenge to the exclusion of expert testimony by affirmatively withdrawing the witness at trial before a final ruling was made.
Concurring in part and concurring in the judgment - Rushing
Yes, the court's judgment affirming Ivey's convictions and sentence is correct because any evidentiary errors were harmless given the overwhelming evidence of guilt. However, Judge Rushing disagrees with the majority's conclusion that the show-up identification procedure was 'impermissibly suggestive.' Prompt, on-the-scene show-ups are not inherently suggestive and can enhance reliability and aid in releasing innocent subjects quickly. In this case, Ivey was captured less than two hours after the crime, and witnesses viewed him one-by-one, reducing potential influence. Detective Hopkins' instructions that Ivey 'may or may not be the person involved' and that eliminating suspects was as important as identifying a perpetrator, effectively mitigated any suggestiveness from Ivey being handcuffed and escorted by an officer. The fact that only 4 of 14 witnesses made positive identifications further indicates that the instructions were effective and that the procedure was not impermissibly suggestive. Therefore, the reliability of the identifications should have been left for cross-examination at trial.
Analysis:
This case reaffirms the Fourth Circuit's precedent that Hobbs Act robbery is a crime of violence under § 924(c)(3)(A), clarifying its consistency with the Supreme Court's Borden decision by emphasizing the intentional nature of the offense. It underscores the high bar for proving harmless error, demonstrating that even significant constitutional and evidentiary violations (like impermissibly suggestive identifications and best evidence rule breaches) may not lead to reversal if the remaining evidence of guilt is overwhelming. The concurring opinion highlights an ongoing judicial debate regarding the inherent suggestiveness of prompt, on-the-scene show-up identifications, illustrating the complexities of balancing law enforcement needs with due process concerns in eyewitness procedures.
