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United States v. Taylor

United States Court of Appeals, First Circuit

February 8, 2017

KEYON A. TAYLOR, a/k/a Key, a/k/a Keyon Taylor, Defendant, Appellee.


          Randall E. Kromm, Assistant United States Attorney, and Carmen M. Ortiz, United States Attorney, on brief for Appellee.

          Karen A. Pickett and Pickett Law Offices, P.C. on brief for Appellant.

          Before Thompson and Barron, Circuit Judges, and McConnell, District Judge.[*]

          THOMPSON, Circuit Judge.

         Keyon Taylor ("Taylor") shot and beat a postal worker, and then hijacked his truck in a botched robbery scheme. The ordeal finally came to an end when the worker popped the truck's rear gate and jumped out of the moving vehicle to try and save his own skin. Taylor was convicted of multiple federal crimes arising from this episode, then sentenced to just shy of thirty years in prison. Taylor now appeals. We affirm on all points but one: Taylor's Guidelines sentencing range was incorrectly calculated, and so we remand for the limited purpose of permitting the trial court judge to reconsider Taylor's sentence.

         The Facts

         Taylor raises many challenges to his conviction and sentence on appeal, but the sufficiency of the evidence is not one of them. So, we give a balanced presentation of those facts necessary to understand the parameters of this appeal and our disposal of it. See United States v. Burgos-Montes, 786 F.3d 92, 99 (1st Cir. 2015), cert. denied, 136 S.Ct. 599 (2015).[1] The details of the crime and the police investigation are important to our analysis of Taylor's claims on appeal, so bear with us as we spell them out.

         On December 20, 2013, around 6:00 pm, a United States Postal Service letter carrier named Fai Wu was out delivering packages in Dorchester, Massachusetts. As he walked back to his truck, Wu noticed a white van parked behind his vehicle but paid it no mind. He reentered his truck, and while buckling his seatbelt and preparing to move along for the next delivery, he heard a man say "Give me your wallet." Wu turned to his right, and inside his truck was a masked man wearing a dark colored jacket aiming a revolver straight at his head. Obviously assuming an armed robbery was in progress, Wu got up to hand over his wallet. But, concerned for his safety, he also tried to move the revolver away from his scalp. In the entanglement, the man shot Wu in the wrist and then demanded that Wu disclose the location of the "cash drawer." Postal trucks do not have cash drawers. When Wu explained this reality, the man clocked Wu in the head ten to twenty times with the butt of his gun, then repeated the question: "Where's the drawer?" When Wu could not deliver the sought-after prize, the attacker ordered Wu into the back of the truck and again asked for the cash drawer. When Wu still could not deliver, the assailant attacked Wu by repeatedly kicking him.

         Eventually the armed attacker ordered Wu to strip off his uniform, to hand over his truck keys, and not to look at him. The assailant then took the uniform and mopped up some of Wu's blood from the front of the truck before driving it away with Wu still in the back. Wu seized his opportunity to escape when the attacker slowed down to turn a corner: clad only in a sweatshirt, long underwear, and socks, Wu popped the tailgate, jumped off the back of the truck, and hightailed it down the street. As he ran, yelling for help, a still-bleeding Wu spotted the same white van he had previously observed and inadvertently brushed up against it. Wu kept going until he came across a group of pedestrians who called 911.

         According to witnesses, the attacker crashed the truck into a snow bank and fled the scene, leaving a visible trail of boot prints and blood behind. Investigators later followed that trail and found, amongst other crime-related items, blood on two chain-link fences; scraps of purple nitrile gloves, including one piece that was stuck to a fence in the blood; and a blood-smeared backyard recycling bin containing Wu's uniform.

         After learning of the attack, postal inspectors and police canvassed the area looking for more clues. Witnesses reported that a white U-Haul van was behind the mail truck before and after Wu was attacked. Investigators discovered that a corner market near the crime scene caught the white van on camera: the market's surveillance footage showed the mail truck driving down the block at 5:57 pm, and as soon as the mail truck passed by, a white U-Haul van turned its headlights on and followed the mail truck around the corner and through a red light.

         Later in the evening, when postal inspectors were still out pursuing their investigation, they spotted a white cargo U-Haul van fitting witnesses' descriptions a short distance from the kidnapping scene. They followed it to a gas station and within moments noticed two blood smudges on the outside of the van and a purple nitrile glove in a cup holder. The inspectors learned Maurice Gittens was the driver and Kemron Roache the passenger. When asked what he was doing with the van, Gittens told the postal inspectors he was living in it (though the rear compartment was nearly empty). Both men were transported to the police station for questioning. While there, Gittens told the police, in pertinent part, the following: the purple glove was not his, but was left in his car by a man named Kurt (whose last name and whereabouts Gittens did not know); yes, he was driving the van that day; at one point he was behind a postal truck and saw a man run from the truck (in the opposite direction of the attacker's flight path); though not positive, he said he picked up Roache around 6:00 pm (shortly before the crime, but two hours before 8:00 pm, the time Roache later claimed Gittens contacted him); and he and Roache drove around together that evening and smoked some marijuana in the park (an alibi).

         With his consent, police searched Gittens' phone and found he had called "Cam, "--later determined to be Roache's nickname--around 6:12 pm that night, and that a few minutes later Cam texted "Ima hit you wen to come threw." At 6:31 pm, Cam texted "Where key at." After obtaining a warrant, police searched the van and found several items, including more purple nitrile gloves, an ID card belonging to Sabrina Ramsey--a woman later determined to be Taylor's girlfriend--and a U-Haul rental agreement in the name of "Maurice Williams" but bearing Ramsey's address. When questioned, Ramsey told police that she was with Taylor and Gittens in the white van until 5:00 or 5:30 pm that day, Taylor did not return to her place until 8:00 or 9:00 pm, and Gittens showed up around 4:00 am (after he was questioned) looking for Taylor.

         So the police started looking for Taylor, too. In their investigation, they discovered that the then-twenty-year-old suspect worked in an office where purple nitrile gloves were used. They also obtained surveillance footage from the U-Haul rental center showing that Taylor and Gittens rented the white van the day before the attack on Wu. Several days later the police went to Taylor's mother's house, where they found Taylor and other evidence, including a black jacket with a stained sleeve.

         DNA testing performed on several seized items showed a lot. Both Taylor and Wu's DNA were found on the black jacket. Wu's uniform retrieved from the recycling bin carried both Wu and Taylor's blood. The blood on the flight path fences and the recycling bin belonged to Taylor. And, the blood on the outside of the white van belonged to Wu.

         Court Proceedings

         Taylor and Gittens were indicted for (1) conspiracy to rob a postal worker under 18 U.S.C. § 371, (2) assault on a federal employee under 18 U.S.C. §§ 111(a)(1) and (b), (3) robbery and attempted robbery under 18 U.S.C. § 2114(a), (4) kidnapping under 18 U.S.C. § 1201(a)(5), (5) attempted kidnapping under 18 U.S.C. § 1201(d), and (6) the use of a firearm in connection with a crime of violence--specifically robbery, attempted robbery, kidnapping, and attempted kidnapping--under 18 U.S.C. § 924(c). Gittens pled guilty before trial to counts 1, 3, and 6, and he was eventually sentenced to ten years' imprisonment.

         Taylor opted for trial, wherein he essentially presented a misidentification defense based on how the crime unfolded. As a result of Wu's assailant wearing a mask during the assault and kidnapping, Wu was unable to identify his attacker. Pivoting off this identity problem and trying to sow seeds of reasonable doubt by labeling any evidence of his culpability inconclusive, Taylor argued that Roache better matched Wu's description of the assailant's height and build. And, that fact, coupled with the presence of Roache's fingerprints on the door of the white van and the recovery of Wu's wallet in a neighborhood near Roache's house, meant Roache had to be the person who robbed and shot Wu. To further support his him-not-me theory, Taylor wanted to use the following evidence: (1) a letter from the government produced during discovery identifying Roache as an unindicted co-conspirator (we call this "the Roache Letter"), and (2) Gittens' statement that he picked up Roache around 6:00 pm that day (we call this "the Gittens Statement"). The trial court ruled both inadmissible.

         Sticking with a misidentification defense during his closing argument (which we will address momentarily), Taylor's lawyer gave the jury an alternative explanation of the evidence which described in detail how Roache was more probably the culprit. In response to the defense's closing, the prosecutor's rebuttal harped on why evidence did not support Taylor's Roache-blaming theory. He also emphasized that statements made by Taylor's attorney are not evidence. In the end the jury didn't buy Taylor's defense and convicted him on all counts.

         Taylor's Presentence Investigation Report recommended a Guidelines sentencing range of 360 months (30 years) to life in prison, plus a mandatory consecutive ten-year term for Taylor's conviction on count six, using a firearm during a crime of violence. Objecting to the report in a presentencing filing and again during his sentencing hearing, Taylor claimed the Guidelines range was wrong for two reasons: his prior conviction for larceny from a person is not a crime of violence, and his criminal history score exaggerated the seriousness of his past crimes, most of which he committed as a teenager. The judge rejected Taylor's first argument but agreed with the second and sentenced Taylor to 235 months, plus ten years.

         This appeal followed.

         Taylor's Arguments

         Taylor raises challenges to several trial happenings: (1) the trial court judge's exclusion of the Roache Letter and the Gittens Statement; (2) the prosecutor's closing argument, which Taylor claims was an improper comment on his failure to testify or present exculpatory evidence; (3) his conviction on count six, for using a firearm during a crime of violence, because he believes the predicate crimes are not crimes of violence under § 924(c); and (4) the procedural reasonableness of his sentence. We address each point in turn.

         The Evidence

         Taylor objected to the exclusion of the Roache Letter and the Gittens Statement at trial, so we review both of these evidentiary rulings for abuse of discretion. See Burgos-Montes, 786 F.3d at 114. "Abuse of discretion occurs 'when a relevant factor deserving of significant weight is overlooked, or when an improper factor is accorded significant weight, or when the court considers the appropriate mix of factors, but commits a palpable error of judgment in calibrating the decisional scales.'" United States v. Jiménez, 419 F.3d 34, 43 (1st Cir. 2005) (quoting United States v. Gilbert, 229 F.3d 15, 21 (1st Cir. 2000)).

         If the trial court abuses its discretion, the burden falls to the government to show the error was harmless. Burgos-Montes, 786 F.3d at 114 (citing United States v. Meserve, 271 F.3d 314, 329 (1st Cir. 2001)). An error is harmless if it "does not affect [a] substantial right[], " Fed. R. Crim. P. 52(a), meaning it is "highly probable that the error did not contribute to the verdict, " United States v. Rose, 104 F.3d 1408, 1414 (1st Cir. 1997).

         The Roache Letter

         Taylor argues that the trial court abused its discretion in excluding the Roache Letter, a letter Taylor urges is admissible as a non-hearsay admission by the prosecution that Roache was a co-conspirator. See Fed.R.Evid. 801(d)(2) (party-opponent admissions are not hearsay). Taylor's theory goes like this:

• Roache did it, or at the very least, the evidence did not prove the perpetrator's identity beyond a reasonable doubt,
• the government's admission that Roache was a coconspirator bolstered Taylor's defense that Roache was involved,
• so, the evidence was relevant and should have been admitted.

          Stating that even if she assumed the Letter could have been admitted under Rule 801(d)(2), the trial court judge barred it nonetheless citing Federal Rule of Evidence 403, which allows the exclusion of otherwise-relevant and admissible evidence if its probative value is "substantially outweighed" by the risk of "confusing the issues" or "misleading the jury." The trial court found that admitting the Letter could lead to "a mini-trial about a side issue"--to wit, why Roache was unindicted--so the risk of confusing the issues substantially outweighed the Letter's probative value. See United States v. George, 761 F.3d 42, 57 (1st Cir. 2014).

         Our take: Assuming the Letter was admissible under Rule 801(d)(2) (we do not say that it was), and assuming the trial court judge erred in excluding it under Rule 403 (and we do not say that she did), the error was harmless. The Letter would have done little to help Taylor's defense. At most, it shows that the government believed Roache may have been involved. But the jury already knew that: the postal inspectors testified that they apprehended Roache with Gittens in the white van on the night of the crime, arrested and questioned them both, and found texts and calls to and from "Cam" (Roache's nickname, remember) on Gittens' cellphone.

         The Letter's exclusion also did not stop Taylor from pressing his him-not-me theory. On cross-examination of the government's witnesses, Taylor drew out the fact that Roache better matched the suspect's description, and that police did not test the seized evidence for Roache's DNA. Taylor called his own witnesses to testify that Wu's wallet was recovered near Roache's house, and that Roache's fingerprints were found on the van. Taylor then used his closing argument to try and tie Roache rather than himself to all of the prosecution's other evidence of the crime. For instance, Taylor argued that his DNA ended up along the attacker's flight path and on Wu's uniform because he met up with Roache by the recycling bin after Roache attacked Wu.

         The prosecution's evidence, on the other hand, strongly pointed to Taylor. Taylor and Gittens were caught on camera renting the white cargo van together. Taylor worked in an office building that used purple nitrile gloves like the ones found stuck to the fence and in the van. When Wu's attacker fled the scene of the crime, he left a trail of blood leading to a blood-smeared recycling bin where the attacker dumped Wu's uniform mid-flight. The blood found on the flight path, the bin, and the uniform was Keyon Taylor's. Postal inspectors found a black jacket like the one worn by Wu's attacker in Taylor's mother's closet. That jacket contained Taylor's DNA and was stained with Wu's blood. Given the abundance of evidence inculpating Taylor, the ...

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