Submitted: November 16, 2018
from United States District Court for the District of South
Dakota - Sioux Falls
COLLOTON, SHEPHERD, and STRAS, Circuit Judges.
Colloton, Circuit Judge.
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 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.
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.
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.
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
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.
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.
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
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 ...