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United States v. Edward Conner

United States Court of Appeals, Eighth Circuit

May 9, 2019

United States of America, Plaintiff - Appellee,
v.
Zachery King Edward Conner, Defendant-Appellant.

          Submitted: November 16, 2018

          Appeal from United States District Court for the District of South Dakota - Sioux Falls

          Before COLLOTON, SHEPHERD, and STRAS, Circuit Judges.

          Colloton, Circuit Judge.

         A jury convicted Zachery Conner of robbery under the Hobbs Act, brandishing a firearm during and in relation to a crime of violence (i.e., the robbery), and unlawful possession of a firearm as a previously convicted felon. See 18 U.S.C. §§ 1951, 924(c)(1)(A)(ii), and 922(g)(1). Over Conner's objection, the district court[1] admitted into evidence a video and five photographs showing Conner wearing a jacket and shoes similar to those worn by the perpetrator of the robbery. Conner challenges the admissibility of this evidence, and he argues separately that Hobbs Act robbery is not a "crime of violence" under § 924(c). We conclude that there was no reversible error, and therefore affirm.

         I.

         On December 7, 2016, a man wielding a gun robbed a Casey's General Store in Yankton, South Dakota. The store's surveillance video captured the incident. The man was wearing a black ski mask and sunglasses, so his face was hidden. The robber also donned a black jacket with red and white trim, a red hooded sweatshirt, red shoes with one white shoelace and one red shoelace, and latex gloves.

         A police officer from Wagner, South Dakota, saw an image of the robber in an online news article. The officer recognized the robber's jacket as similar to one that Conner was wearing when he was arrested three weeks earlier and booked at the county jail. The Wagner officer informed the Yankton police of the possible identification, and the police started distributing photos of Conner to the public.

         The day after the robbery, police received a tip that a man matching Conner's description had left a convenience store as a passenger in a red truck. The police located the truck parked behind a residence and discovered Conner walking on the sidewalk in front of the house. The residence belonged to an acquaintance of Conner. The homeowner consented to a search of his residence, and police found a black jacket with red and white trim, a red hooded sweatshirt, a loaded gun, and latex gloves.

         A grand jury charged Conner with Hobbs Act robbery, brandishing a firearm during and in relation to a crime of violence under 18 U.S.C. § 924(c), and unlawful possession of a firearm as a previously convicted felon. Conner moved to dismiss the § 924(c) count on the ground that Hobbs Act robbery is not a "crime of violence." The district court denied the motion.

         Conner also moved in limine to exclude two videos of him at the county jail after his arrest on November 17, 2016. One video, designated as Exhibit 14, showed Conner in the lobby of the jail, handcuffed and taking a breath test. The other video, marked as Exhibit 8, showed Conner walking through an entryway with his hands behind his back; no handcuffs or other restraints were visible.

         The government sought to offer these videos, as well as still photographs drawn from the videos, to show Conner "wearing a jacket and shoes that matched the jacket and shoes worn by the person that committed the robbery on December 7, 2016." The entryway video showed Conner, three weeks before the robbery, wearing a black jacket with red and white trim and red shoes with one white shoelace and one red shoelace. The surveillance video from Casey's showed the robber wearing a black jacket with red and white trim and red shoes with one white shoelace and one red shoelace.

         Conner argued that the evidence should be excluded as improper character evidence under Federal Rule of Evidence 404(b) and as unfairly prejudicial under Rule 403. At a pretrial conference, the district court excluded the lobby video (Exhibit 14) but ruled admissible the entryway video (Exhibit 8) and the still photographs derived from the video, which were marked as Exhibits 9 through 13. At trial, when the government sought to introduce Exhibits 8-13, the district court issued a limiting instruction to the jury:

The following video recording and photographic evidence, in that you will see Mr. Conner during an interaction with the Wagner Police Department that took place in November of 2016. You may use this evidence to help you decide whether Mr. Conner is the person who committed the offense as alleged in the Indictment. You should not conclude that Mr. Conner is more or less likely to have committed ...

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