Conviction affirmed despite victim impact statements

Although the district court should not have allowed (1) the employees of two robbed jewelry stores to testify about how the emotional aftermath of the robberies affected their lives or (2) a law enforcement agent to give lay testimony about coded language defendant used in a recorded telephone call, the government’s other evidence of defendant’s guilt was overwhelming.

We affirm defendant’s convictions for conspiracy to commit Hobbs Act robbery, two counts of Hobbs Act robbery, brandishing a firearm during the commission of a crime of violence, and witness tampering.

Through the testimony of his accomplices, the jewelry store employees, and Byron Sparks – who sold defendant a vehicle in exchange for drugs, money and stolen jewelry – the government explained how defendant planned and helped to execute the robberies of two jewelry stores and then tried to intimidate Sparks to keep him from testifying. The government also presented corroborating evidence such as cellular analysis, GPS tracking data and traffic camera footage.

Victims’ statements

The district court erred when it allowed the jewelry store employees to testify about how the robberies affected their lives.

Perhaps the testimony about how Tiffani Bene lost her marriage and her children, Karen Swain was afraid to leave her home, and Shatima Soler-Garcia tried to go back to work but had to quit her job because she had panic attacks helps to demonstrate that the robberies were traumatizing for the store employees — more akin to a victim impact statement at sentencing. But it is only minimally relevant to proof of an element of the crime charged — the store employees’ fear of injury during the robbery.

The district court erred when it allowed the victim store employees to testify about the robberies’ long-term effects on their lives.

However, the district court properly admitted Bene’s testimony that defendant was the decoy guy and Swain’s testimony that defendant was trying to act like he was afraid during the Elizabeth City robbery because those statements are proper lay opinions.

Defendant asserts that Bene’s and Swain’s testimony was not rationally based on their observations during the robbery because he questions their abilities to think rationally during the “brief and chaotic time” his accomplices were robbing the store. To the contrary, Bene and Swain explained why they held those beliefs, and their testimony indicates that their opinions were “based on [their] reasoning and opinions about witnessed events,” which is the hallmark of lay opinion testimony.

Bene and Swain offered a unique viewpoint of the robbery that is not reflected in the soundless surveillance video. Therefore, their statements were properly admitted as lay opinions.

Agent’s testimony

The district court also erred when it allowed Robertson to interpret recorded phone calls between defendant and his then-incarcerated girlfriend. Robertson testified that one call’s references to a “mission” referred to a planned robbery and that another call’s references to a basketball game referred to a completed robbery.

We agree with defendant that Robertson cannot testify about the meaning of a conversation to which he was not a party. Because he did not participate in the conversation, Robertson was in no better position than the jury to decipher what defendant meant when he made the statements at issue.

A law enforcement officer’s narrative gloss that consists almost entirely of her personal opinions of what a defendant’s conversations meant based on her investigation after the fact, not on her perception of the facts is not admissible.

About an October 12, 2018 call, Robertson testified that it “didn’t make sense” that defendant “would be so cryptic about something as seemingly innocuous as a basketball game,” and therefore, the basketball game “was code for discussion of the robbery.” The jury, if it were so inclined, could have reached this conclusion on its own, without Robertson’s personal opinion about the meaning of the conversation, which aligned with the government’s theory of the case.

The same is true with regard to Robertson’s testimony about the meaning of certain language in a July 12, 2018 call. Robertson’s insistence that defendant’s use of the word “mission” was a reference to “a robbery that’s being planned” is mere speculation absent the information Robertson discovered afterward while investigating this case.

Moreover, the jury, hearing all the evidence the Government presented, did not need Robertson to tell them that defendant “meant that [he had] a leadership role” when he said he had “to go in because it’s [his] lineup.”

To permit a law enforcement officer to testify in the manner Robertson did here is to bolster the government’s theory of the case with the imprimatur of law enforcement, which is improper. As such, the district court erred when it failed to exclude this testimony.

Witness tampering

We further hold that the district court appropriately allowed Sparks to testify that defendant was dangerous and admitted screenshots that Sparks received of photographs of the letters saying that he was an informant.

The government connected that screenshot to defendant by introducing testimony from Robertson that the images in the screenshot and in a page from a letter defendant admits he wrote “appear to be similar.”

Another screenshot is a photograph of a letter purportedly written on December 23, 2019. The jury could compare the handwriting in both letters. The jury could also compare the similar words and phrases used in and the similar content of both letters.

If the jury were to find that the documents depicted in the screenshots came from defendant, then even defendant would seem to agree that the threats therein “would be relevant to show the intimidation of a witness.” The same is true of Sparks’s testimony that the documents depicted in the screenshots came from defendant.

Witness tampering involves “intimidation,” “threat[s],” or “corrupt[] persua[sion],” 18 U.S.C. § 1512(b), and Sparks’s explanation of why he felt threatened by defendant’s branding him as an informant bears on whether defendant engaged in witness tampering.

The jury also heard defendant’s own testimony that he spent 14 years on death row for first-degree murder and later pled guilty to conspiracy to commit and accessory after the fact to murder. Sparks’s testimony therefore did not paint defendant darker than he already must have appeared. Any risk of unfair prejudice is minimal.

Affirmed.

United States v. Walker, 21-4088, April 27, 2022. 4th Cir. (Thacker), from USDC at New Bern, N.C. (Flanagan). Thomas Kieran Maher and Amos Todd for appellant; Kristine Fritz, Norman Acker and David Bragdon for appellee. 4th Cir. VALW No. 022-2-113, 37 pp.