United States of America v Marc Anthony Hill; Bennie Charles Phillips, Jr.; Nelson Alexander Polk; John Edward Scott

II. Background

A. Wells Fargo Murder-Robbery and Subsequent Investigation

On August 29, 2016, Batiste, assisted by Hill and Polk, shot and killed

an armored car driver as he was delivering approximately $120,000 to a Wells

Fargo ATM. The following month, the Houston Police Department (HPD)

received an anonymous tip that Batiste had been involved in the Wells Fargo

murder-robbery. HPD and the FBI's Violent Crime Task Force (the "Task

Force”) investigated the tip. Special Agent Jeffrey Coughlin headed the

Task Force's investigation. Batiste's cell phone records and cell-site

locational data showed that Batiste's phone regularly contacted the numbers

associated with Hill and Polk on the day of the incident. It also revealed that

all three phones were in the bank's area on the day of the Wells-Fargo

murder-robbery and in the days leading up to the murder-robbery.

B. Attempted Amegy Bank Murder-Robbery

During September and October 2016, the Task Force surveilled

Batiste and observed his practice of traveling to different ATMs and banks in

Houston. In October, Duncan-Bush, a jailhouse acquaintance of Phillips,

joined the scheme when Phillips called Duncan-Bush to ask if he "want[ed]

to make some money.” By November, it became evident to the Task Force

that Batiste was targeting an Amegy Bank ATM. The Task Force had

obtained court orders for the call records and cell-tower locations of Batiste

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and Phillips's phones and, a wiretap of Batiste's phone. In late November,

Phillips and Duncan-Bush met with Batiste and agreed that Duncan-Bush

would "grab the black bag,” containing the cash from the armored truck, and

that Phillips and Duncan-Bush would split half of the cash, while Batiste

would take the other half.3



On November 30, 2016, Hill and Batiste observed the armored car's

delivery to the Amegy Bank ATM. The Task Force's recordings revealed

that Batiste called Phillips to confirm that the armored car was coming that

day. Later, Batiste told Phillips that he thought about being in "savage

mode” and "tak[ing] the whole truck down[.]” The same day, Batiste sent

news stories about other armored car robberies to Phillips and warned him,

"[n]o talking, bragging, posting, [or] flashing[.]” Scott also joined the

conspiracy that day after Batiste called and asked him if he wanted to be "in

rotation.” On December 2, Batiste called Phillips and mentioned using an

AR-15 semi-automatic rifle. He told Phillips that he had had the gun's

ballistics modified in case law enforcement recovered ballistic evidence from

the shooting. The next day, Batiste and Hill discussed holding a

"scrimmage,” or test run, of the robbery at the Amegy Bank ATM on

December 5. Phillips brought Duncan-Bush to meet Polk for the scrimmage

and picked him up afterward. Batiste later called Phillips to ask whether

Duncan-Bush was still willing to participate, and Phillips answered that it was

"still a go.” Phone records from December 6 and 7 showed all of the

Defendants in regular communication on the days before and of the planned

Amegy Bank ATM murder-robbery.

The investigation culminated in a government takedown of the wouldbe robbers on December 7, the day of the planned Amegy Bank murderrobbery. Duncan-Bush, Polk, Hill, and Scott attempted to flee from officers

but were arrested. Batiste opened fire during the takedown, but the officers'

3 The method of compensation of the other robbers is not clear from the record.

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return fire hit and killed him. Phillips, who was not at the scene of the

attempted robbery, was arrested that afternoon.

C. Consolidated Prosecution of Both Cases

In March 2018, a grand jury returned a four-count indictment against

Hill, Polk, Scott, Phillips, and Duncan-Bush. Hill and Polk were charged

with aiding and abetting Hobbs Act robbery in violation of 18 U.S.C. §§

1951(a) and 1952 ("Count One”), and aiding and abetting the use of a firearm

during a crime of violence causing the death of a person in violation of 18

U.S.C. §§ 924(c)(1)(A)(iii), (c)(3) and (j)(1) ("Count Two”), in connection

with the Wells Fargo murder-robbery during which they successfully

murdered and robbed an armored car driver. Hill, Polk, Scott, Phillips, and

Duncan-Bush were each charged with attempted Hobbs Act robbery in

violation of 18 U.S.C. § 1951(a) ("Count Three”), and aiding and abetting

the discharge of a firearm during a crime of violence in violation of 18 U.S.C.

§ 924(c)(1)(A)(iii) and (c)(3) ("Count Four”), in connection with the

Amegy Bank ATM attempted murder-robbery, which was thwarted by police

and resulted in the death of coconspirator Batiste. Duncan-Bush pleaded

guilty under a plea agreement to Counts Three and Four. The first attempt

at trial ended abruptly after voir dire when Hill fired his counsel and

requested a continuance to obtain new counsel. After a one-week trial, the

jury in the second consolidated case returned guilty verdicts on all counts

against each Defendant. Hill and Polk were each sentenced to two

concurrent 240-month terms on Counts One and Three, followed by two

consecutive life terms each on Counts Two and Four. Scott and Phillips were

sentenced to 240 months on Count Three and a consecutive life term on

Count Four. Defendants now appeal their convictions and sentences to this

court.

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III. Discussion

A. Shackling

At trial, the court informed the parties that the U.S. Marshals Office

(the "Marshals”) had evaluated the trial as having the highest level of risk

and recommended that the Defendants wear leg shackles, which would be

hidden from the jury's view by a table skirt. Alternatively, the Marshals

recommended using a banded electronic restraint device under each

Defendant's clothing. The Marshals based their assessment on a

combination of factors, including the fact that the Defendants were charged

with "premeditated, extremely violent offenses,” that the Defendants faced

significant time in custody if convicted, the Defendants' criminal histories,

and the joint nature of the trial.

When trial resumed after the continuance, each Defendant wore leg

shackles and an electronic restraint device. Judge Werlein, who presided

over the case before its transfer to Judge Hittner, had granted the

Defendants' motion not to use leg restraints notwithstanding the Marshals'

report, based on the "representation of defense counsel that they believed

that the risks are not as great as the Marshal[s]” had determined. Instead,

Judge Werlein had ruled that Defendants would wear electronic restraints

under their clothing. However, after the continuance and transfer to Judge

Hittner, Judge Hittner ordered that the Defendants wear leg shackles

covered by a table skirt as the Marshals had recommended. Judge Hittner

did not explain the reason for this change on the record.

Hill objected to the shackling before the trial reconvened, but the

court overruled these objections, given the fact that that the shackles would

not be visible to the jury. However, due to disruptive behavior during the

trial, on one occasion the court ordered Hill temporarily removed from the

courtroom. Hill claims that during this removal, the jury saw the shackles.

Thus, he contends that the district court violated his constitutional rights by

shackling him in view of the jury. The Government argues that the district

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court did not abuse its discretion in determining that shackling was necessary

given the Marshals' assessment that Hill posed a security threat and that,

even if the jury did see Hill's shackles when he was removed from the

courtroom, Hill did not present the requisite evidence to show that he was

actually prejudiced as a result.

This court reviews a district court's determination to physically

restrain a defendant during trial for abuse of discretion. See United States v.

Maes, 961 F.3d 366, 375 (5th Cir. 2020). "A district court abuses its

discretion if it bases its decision on an error of law or a clearly erroneous

assessment of the evidence.” United States v. Gentry, 941 F.3d 767 (5th Cir.

2019), cert. denied sub nom. Bounds v. United States, 140 S. Ct. 2731 (2020).

The Due Process Clause generally "prohibit[s] the use of physical

restraints visible to the jury[.]” Deck v. Missouri, 544 U.S. 622, 629 (2005).

Visible shackling can undermine the presumption of innocence, interfere

with a defendant's ability to assist in his own defense, and undermine the

"dignity” of the judicial process. Id. at 630–32. But this "constitutional

requirement . . . is not absolute.” Id. at 633. A trial court may exercise its

discretion to determine that restraints "are justified by a state interest

specific to a particular trial,” considering factors such as potential security

problems and the risk of escape. Id. at 629.

The Government argues that security concerns justified the court's

decision to shackle Hill. It argues that this circuit has long understood "the

need to give trial courts latitude in making individualized security

determinations.” United States v. Ayelotan, 917 F.3d 394, 401 (5th Cir. 2019)

(internal quotation marks omitted), cert. denied, 140 S. Ct. 123 (2019). We

have held that this latitude permits courts to "rely heavily on the U.S.

Marshals' advice in considering restraints.” Id. (internal quotation marks

omitted). Given that the Marshals' conclusion that the trial had the highest

level of risk, the Government argues that the district court did not abuse its

discretion in shackling Hill.

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Hill argues that "the [c]ourt did not give sufficient reasons for

restraining [him] by connecting an electronic monitor under his clothes.”

This court has held that even when a district court gives no reasons for

shackling a defendant, those reasons may be apparent on the record when

viewed in light of the specific facts of the case. See United States v. Banegas,

600 F.3d 342, 345 (5th Cir. 2010). But where the court provides no reasons

and it is not apparent on the record that shackling was justified, the burden

shifts to the Government to prove beyond a reasonable doubt that the error

complained of did not contribute to the verdict. Id. at 346 (quoting Deck, 544

U.S. at 635). Hill thus argues that because the Government has not proven

beyond a reasonable doubt that the jury did not see his restraints, he has

established that his due process rights were violated.

Although Hill acknowledges the Marshals' report, he argues that this

report does not make apparent on the record that the shackling was justified

because the district court improperly relied on it. He asserts that "[t]he

[c]ourt['s] ruling was predicated on the recommendations of law

enforcement and not by an independent evidentiary assessment by the

court.” But in the leading case in this area, Deck v. Missouri, 544 U.S. 622,

633 (2005), the Supreme Court held that the decision to shackle must be

made based on factors specific to the trial being considered: it did not hold

that the court could not rely on an assessment of the trial's specific factors

made by the U.S. Marshals. Id. (stating that a judge, in the exercise of his

discretion, may shackle a defendant even in view of the jury when justified by

"particular concerns . . . related to the defendant on trial” such as "special

security needs or escape risks[.]”).

Given well-established subsequent precedents in this circuit

indicating that courts may rely heavily on the recommendation of the

Marshals, Hill's argument is not compelling. See, e.g., United States v.

Ellender, 947 F.2d 748, 760 (5th Cir. 1991); United States v. Ayelotan, 917 F.3d

394, 401 (5th Cir.), cert. denied, 140 S. Ct. 123 (2019). Additionally, this court

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has held that "brief and inadvertent exposure to jurors of defendants in

handcuffs is not so inherently prejudicial as to require a mistrial” and that in

such cases "defendants bear the burden of affirmatively demonstrating

prejudice, which we refused to infer from isolated incidents.” United States

v. Turner, 674 F.3d 420, 435 (5th Cir. 2012) (citing United States v. Diecidue,

603 F.2d 535, 549 (5th Cir. 1979)).

Here, even taking as true Hill's assertion that the jury saw his shackles

when he was removed from the courtroom, this was a brief and inadvertent

exposure4 and an isolated incident. Therefore, Hill bears the burden of

demonstrating prejudice. See Turner, 674 F.3d at 435. He does not present

any evidence showing that he was actually prejudiced. We thus conclude that

the district court did not abuse its discretion in shackling Hill.

B. Removal from the Courtroom

During voir dire, Hill abruptly fired his attorney and requested a

continuance of trial to obtain new counsel. The court reluctantly granted the

motion and rescheduled trial to begin two months later. Ultimately, Hill did

not retain new counsel and instead moved to proceed pro se. The court

granted Hill's motion and appointed him standby counsel.

Subsequently, one morning during the trial, the court announced

outside of the jury's presence that it had been informed by the Marshals that

Hill's wife had entered the courthouse with a razor blade hidden in court

4 The contact which we held not to be so inherently prejudicial in Diecidue was

arguably much more significant than in this case. There, the defendants sought a mistrial

based on at least three instances of jurors seeing the defendants entering or exiting the

courthouse flanked by Marshals, in handcuffs, or in waist chains and handcuffs. 603 F.2d

at 549. Although Diecidue was decided before Deck, our more recent precedents still

indicate that more is required under Deck. See, e.g., United States v. Banegas, 600 F.3d 342,

347 (5th Cir. 2010) (assuming prejudice where defendant was restrained with leg irons for

the duration of a trial with no explanation from the judge); United States v. Davis, 754 F.3d

278 (5th Cir. 2014) (finding no error where defendant was handcuffed and shackled at trial

based on testimony that defendant had threatened to kill witnesses).

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clothes that she had brought for Polk.5

The court thus barred her from

entering the courthouse for the remainder of trial. This prompted an

outburst from Hill, during which he repeatedly demanded that the court

identify the Marshal who found the razor blade and complained of racism,

general constitutional violations, and shackling. The court warned Hill that

he would be removed if his behavior did not stop and allowed Hill to confer

with Scott's counsel at Scott's counsel's request. However, after the jury

returned to the courtroom, Hill attempted to directly address the jury. The

court warned Hill again that it would remove him from the courtroom if

necessary, but Hill continued to protest. The court then ordered Hill

removed from the courtroom and appointed his standby counsel as his lead

counsel.

Hill contends that the district court violated his Sixth Amendment

and due process rights by temporarily removing him from the courtroom. He

argues that the court acted to remove him prematurely and failed to first

employ less drastic alternatives. The Government argues that Hill's removal

was justified by his disruptive conduct and that the district court is not

required to use removal only as a last resort.

The parties disagree as to the standard of review under which this

court should review this issue. The Confrontation Clause of the Sixth

Amendment states that "[i]n all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the witnesses against him . . ..”).

One of the most basic of the rights guaranteed by the Confrontation Clause

is the accused's right to be present in the courtroom at every stage of his trial.

Illinois v. Allen, 397 U.S. 337, 338 (1970). Federal Rule of Criminal Procedure

43 codifies this constitutional right, as well as its exception: a defendant

waives the right to be present "when the court warns the defendant that it

5 The Government reminded the court that this was not the first incident involving

a razor blade, as at a pretrial hearing, Phillips's father had concealed a razor blade in court

documents.

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will remove [him] from the courtroom for disruptive behavior, but the

defendant persists in conduct that justifies removal from the courtroom.”

Fed. R. Crim. P. 43(c)(1)(C).

Based on Allen and its interpretation by other courts, the Government

asserts that the correct standard of review is abuse of discretion. See Allen,

397 U.S. at 343; see also United States v. Daniels, 803 F.3d 335, 350 (7th Cir.

2015); United States v. McGill, 815 F.3d 846, 900–01 (D.C. Cir. 2016) (per

curiam).

Hill, on the other hand, urges that the appropriate standard is "narrow

discretion” based on language from United States v. Hernandez, 842 F.2d 82,

85 (5th Cir. 1988). In Hernandez, we held that the court has only "narrow

discretion in deciding whether to proceed with a trial when a defendant is

voluntarily in absentia . . .” Id. (quoting United States v. Benavides, 596 F.2d

137, 139 (5th Cir. 1979) (internal quotation marks omitted)). However,

Hernandez articulates the standard of review for the continuing of a trial after

a defendant has voluntarily left the courtroom or failed to appear altogether,

not for removal of a defendant from the courtroom. Id.; see also Benavides,

596 F.2d at 139. On the other hand, where a defendant is ordered removed

from the courtroom, "trial judges confronted with disruptive, contumacious,

stubbornly defiant defendants must be given sufficient discretion to meet the

circumstances of each case.” Allen, 397 U.S. at 343. We therefore conclude

that the correct standard of review for the court's removal of Hill is abuse of

discretion.

In contending that the district court removed him prematurely, thus

violating his Sixth Amendment and due process rights, Hill attempts to

distinguish this case from Allen. In Allen, the court removed a defendant who

consistently interrupted the judge and engaged in disruptive behavior during

the court proceedings. 397 U.S. 337, 339–41 (1970). After the judge had

issued several warnings, Allen was removed from the courtroom. Id. at 340.

The court determined he had lost his right to be present for the proceedings.

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Id. at 341. Hill argues that the facts which led the Supreme Court to approve

of the defendant's removal in Allen are distinguishable from this case because

the defendant in Allen personally threatened the judge, and that the other

cases on which the Government relies also involved "more significant,

extreme, and egregious variables.” Conversely, the Government argues that

the district court correctly applied Allen.

Although Hill makes much of the fact that the defendant in Allen

personally threatened the judge, the Court's conclusion in Allen does not

turn on that fact. Rather, the Supreme Court held that "a defendant can lose

his right to be present at trial if, after he has been warned by the judge that he

will be removed if he continues his disruptive behavior, he nevertheless

insists on conducting himself in a manner so disorderly, disruptive, and

disrespectful of the court that his trial cannot be carried on with him in the

courtroom.” Allen, 397 U.S. at 343 (internal citations omitted). The Court

quoted Justice Cardozo, in Snyder v. Massachusetts, 2911 U.S. 97, 106 (1934):

Although mindful that courts must indulge every reasonable

presumption against the loss of constitutional rights, Johnson v.

Zerbst, 304 U.S. 458, 464 (1938), we explicitly hold today that

a defendant can lose his right to be present at trial if, after he

has been warned by the judge that he will be removed if he

continues his disruptive behavior, he nevertheless insists on

conducting himself in a manner so disorderly, disruptive, and

disrespectful of the court that his trial cannot be carried on with

him in the courtroom. Once lost, the right to be present can,

of course, be reclaimed as soon as the defendant is willing to

conduct himself consistently with the decorum and respect

inherent in the concept of courts and judicial proceedings.

Allen, at 343 (footnotes omitted).

The events leading up to Hill's removal meet this description.

Moreover, Hill concedes his behavior was disruptive. Following Hill's

outburst, the court warned Hill that he would be removed if his behavior

continued and allowed him to confer with Scott's counsel at Scott's

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counsel's request. When the jury returned, Hill continued to behave

disruptively and attempted to address the jury directly. At this point, the

court gave Hill yet another warning before ordering his removal from the

courtroom. As in Allen, the court repeatedly warned Hill that he would be

removed if he did not cease behaving disruptively, yet he did not heed those

warnings.

Nevertheless, Hill argues that, before ordering his removal, the court

should have first exhausted less extreme alternatives. But Allen does not

make "removal a last resort” or require a district court to "exhaust every

other possible cure” before ordering removal. United States v. Benabe, 654

F.3d 753, 770 (7th Cir. 2011); cf. Allen, 397 U.S. at 343–44 ("We think there

are at least three constitutionally permissible ways for a trial judge to handle

an obstreperous defendant like Allen: (1) bind and gag him, thereby keeping

him present; (2) cite him for contempt; (3) take him out of the courtroom

until he promises to conduct himself properly.”).

In any case, the court here did attempt alternatives before removing

Hill. The court explicitly warned Hill more than once to cease his disruptive

conduct lest he be removed, first allowed him to confer with Scott's counsel

instead of removing him, and then removed him only after he continued to

disrupt the trial in front of the jury. Further, the court allowed Hill to return

to the courtroom later that same day after a recess and following standby

counsel's assertion that he would not continue his outbursts. See Allen, 397

U.S. at 343. We therefore conclude that the district court did not abuse its

discretion in temporarily removing Hill from the courtroom following his

outburst.

C. Revocation of Pro Se Status

When the district court temporarily removed Hill from the

courtroom, it revoked his pro se status and appointed the previously

designated standby counsel as lead counsel, even once Hill was permitted to

return to the courtroom. Hill contends that the district court thereby

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improperly violated his right to self–representation. The Government argues

that the district court acted within its discretion when it revoked Hill's pro

se status.

We review claims concerning the right of self-representation de novo.

United States v. Jones, 421 F.3d 359, 363 (5th Cir. 2005). An improper denial

of the right of self-representation requires reversal without harmless error

review. United States v. Majors, 328 F.3d 791, 794 (5th Cir. 2003).

The right to self-representation is necessarily implied by the Sixth

Amendment, but it is not absolute. See Faretta v. California, 422 U.S. 806,

818, 824 (1975). A district court "may terminate self-representation by a

defendant who deliberately engages in serious and obstructionist

misconduct.” Id. at 834 n.46. This court has also indicated that defendants

may waive their right to self-representation via obstructionist conduct,

especially if that behavior may be interpreted as a delay tactic. See, e.g.,

United States v. Long, 597 F.3d 720, 726–27 (5th Cir. 2010); United States v.

Weast, 811 F.3d 743, 748–49 (5th Cir. 2016).

The Government relies primarily on Allen to argue that the district

court acted within its discretion to revoke Hill's pro se status "following his

repeated disruptive behavior and consistent refusal to comply with the

court's warnings.” It suggests that once a pro se defendant is removed from

the courtroom for disruptive behavior, the appropriate procedure is for the

court to revoke pro se status. See Davis v. Grant, 532 F.3d 132, 142–45 (2d

Cir. 2008).

In Allen, the Supreme Court found that the district court had

permissibly removed the defendant from the courtroom, and that it had

permissibly revoked his pro se status based on multiple incidents of

disrupting the proceedings and stating that he would continue to do so, as

well as threatening the judge and tearing up his attorney's papers. 397 U.S.

at 339–41. The Supreme Court rejected the notion that the Sixth

Amendment right to be present at one's own trial is absolute regardless of

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the defendant's unruly or disruptive conduct. Id. at 342. Rather, "the right

of self-representation is limited by the trial court's responsibility to maintain

order and safety and to prevent disruption or delay.” United States v. Vernier,

381 Fed. App'x 325, 328 (5th Cir. 2010) (unpublished) (citing Faretta, 422

U.S. 806, 834 (1975)); see also Indiana v. Edwards, 554 U.S. 164 (2008)

(holding that the court did not violate the Sixth Amendment by appointing

counsel against defendant's objection where defendant was competent to

stand trial but not competent to conduct trial proceedings by himself).

Hill makes several arguments that the district court erred in revoking

his pro se status. First, he argues that the court could have utilized standby

counsel to advise Hill that his behavior was disrespectful of the court's

protocol, which it ultimately did, but not until after "the [c]ourt had already

acted prematurely in terminating [his] right to self[-]representation[.]” Hill

also argues that the court should have held a recess or used standby counsel

to calm him down before revoking his pro se status. However, the district

court did essentially attempt to mitigate the situation both ways: by allowing

Scott's counsel to confer with Hill and by taking a break in proceedings while

the jury was brought back into the courtroom. Moreover, Hill's arguments

that the district court should have taken other measures before revoking his

pro se status fail for the same reasons as do his arguments that the court

should have taken other measures before ordering him removed from the

courtroom: it tried, but Hill's behavior did not improve. We see no abuse of

discretion.

Next, Hill argues that his conduct was not so extreme as in other cases

in which this court has found that revocation of pro se status was permissible,

citing United States v. Long, 597 F. 3d at 726–27 and Chapman v. United

States, 553 F. 2d 886, 895 (5th Cir. 1977). Further, Hill argues that his

conduct was not deliberatively obstructionist. See Faretta, 422 U.S. at 834

n.46; see also Chapman v. United States, 553 F.2d 886, 894 (5th Cir. 1997)

(holding that a defendant's request to represent himself at trial may be

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rejected if it is intended to cause delay or gain another kind of tactical

advantage). Hill argues his behavior was not "an attempt to gain a strategic

or tactical advantage such as delay.” Rather, he argues that it was the result

of an impulsive emotional response to the removal of his wife from the

courtroom.

Based on Allen and our subsequent precedents, Hill's conduct is not

distinguishable from cases in which the court found revocation of pro se

status permissible. See United States v. Long, 597 F.3d 720 (5th Cir. 2010);

United States v. Weast, 811 F.3d 743 (5th Cir. 2016). In Long, we found that

the defendant had waived his right to assert his right to self-representation at

sentencing by refusing to answer the court's questions, repeatedly asserting

"Republic of Texas psychobabble” throughout the trial, and repeatedly

changing his mind about firing his appointed counsel. 597 F.3d at 727

(internal quotation marks omitted). That court stated that "[g]iven Long's

previous disruptive and uncooperative conduct, the trial court may have seen

[his demand to represent himself pro se] as another delay tactic.” Id. Here,

similarly, given Hill's abrupt firing of his counsel which necessitated a twomonth continuance before the recommencement of trial, as well as his

continual disruption of court even in the presence of the jury, the district

court did not err in concluding that Hill was acting "to delay or disrupt the

trial.” Weast, 811 F.3d at 749. Therefore, the district court acted within its

discretion to revoke Hill's pro se status based on his continuing disruptive

conduct.

D. Denial of a Mistrial

Following Hill's outburst and removal from the court room, Scott and

Philips moved unsuccessfully to sever their trials from the other

Defendants'. Instead, the court instructed the jury not to consider the

outburst as evidence in the case. Scott and Hill requested that the jurors be

individually polled to determine whether this instruction would cure

potential prejudice due to the outburst. The court denied the request and

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instead questioned the jury as a group. The court asked the jury if there was

any juror who could not follow its instruction to consider only the admitted

evidence when rendering a verdict for each individual Defendant, and no

juror raised a hand. At the conclusion of the trial, the court gave additional

limiting instructions advising the jury of its duty to consider the charges and

evidence against each individual Defendant separately.

Phillips contends that the district court abused its discretion in

denying him both a mistrial and severance. We first consider the district

court's refusal to declare a mistrial. Although Phillips did not explicitly move

for a mistrial below, the Government concedes that this error is preserved on

appeal because if the court had granted the motion to sever, it would have

had to declare the joint proceedings a mistrial. The Government argues that

the court acted within its discretion when it denied Phillips's motion for

mistrial because it gave an appropriate limiting instruction to minimize any

prejudicial effect of Hill's outburst.

When the issue is preserved, as here, this court reviews the denial of

a mistrial for abuse of discretion. See, e.g., United States v. Nieto, 721 F.3d

357, 369 (5th Cir. 2013). To establish an abuse of discretion, "the defendant

bears the burden of showing specific and compelling prejudice that resulted

in an unfair trial, and such prejudice must be of a type that against which the

trial court was unable to afford protection.” United States v. Thomas, 627

F.3d 146, 157 (5th Cir. 2010) (internal quotation marks omitted).

We have held that "outbursts or other disruptive actions during the

course of the trial by a defendant do not, in and of themselves, justify

severance” or a mistrial. United States v. Rocha, 916 F.2d 219, 229 (5th Cir.

1990). Nonetheless, "[a] district court must be mindful of the negative

impact such evidence may have upon the jury and carefully consider the

possible unfair prejudice against the other defendants.” Id. at 229–30. This

court has long held that an appropriate limiting instruction is sufficient to

prevent the threat of prejudice by evidence which is incriminating against one

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codefendant but not another. See, e.g., Rocha, 916 F.2d at 228–29; United

States v. DeVarona, 872 F.2d 114, 121 (5th Cir. 1989); United States v. Jones,

839 F.2d 1041, 1054 (5th Cir. 1988), cert. denied, 486 U.S. 1024 (1988); United

States v. Massey, 827 F.2d 995, 1004–05 (5th Cir. 1987); United States v.

Hughes, 817 F.2d 268, 272–73 (5th Cir. 1987), cert. denied, 484 U.S. 858

(1987). Limiting instructions to the jury "will generally prevent actual harm

to a defendant” as "jurors are presumed to follow the court's instructions.”

United States v. Richardson, 781 F.3d 237, 246 (5th Cir. 2015).

The Government argues that the district court appropriately provided

curative instructions to the jury in response to any potential prejudicial

effects of Hill's outburst. The Government relies on cases in which this court

has held that potential prejudice resulting from one defendant's outburst was

cured by jury instructions. United States v. Stotts, 792 F.2d 1318, 1322 (5th

Cir. 1986); see also Rocha, 916 F.2d at 231. The Government argues that, as

in those cases, the district court here acted within its discretion to deny a

mistrial because, following Hill's outburst, it gave detailed instructions on

multiple occasions for the jury to disregard the disruption.

Phillips argues that the prejudicial effect of Hill's outburst required a

mistrial be declared because it "created a unique and extreme circumstance”

that could not be cured by limiting instructions. Phillips relies on Braswell v.

United States, in which this court did hold that prejudice to defendants due

to codefendants' outbursts justified a mistrial. 200 F.2d 597, 602 (5th Cir.

1952). Further, whereas this court has stated that general assertions not

pointing to "specific events that caused substantial prejudice” are

insufficient, United States v. Smith, 895 F.3d 410, 416 (5th Cir. 2018), cert.

denied sub nom. Washington v. United States, 139 S. Ct. 495 (2018), Phillips

argues that, here, he has pointed to very specific instances of prejudicial

outbursts.

Although we recognized in Braswell that a disruption by a codefendant

may result in incurable prejudice, on review of the facts, the disruption in

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Braswell was much more extreme than in this case. Braswell v. United States,

200 F.2d 597, 602 (5th Cir. 1952). In Braswell, two codefendants had

assaulted a U.S. Marshal during the trial and another defendant had to be

forcibly restrained to prevent her from taking pills, during which she bit a

police officer. Id. In comparison, we have held under similar and more

extreme circumstances than those presented here that jury instructions to

disregard the incident cured any possible prejudice from the codefendant's

outburst. See United States v. Stotts, 792 F.2d 1318, 1322 (5th Cir. 1986)

(finding prejudice to be effectively cured by jury instructions to disregard a

codefendant's outburst during which he was removed from the courtroom

after an "altercation” with a Marshal); Rocha, 916 F.2d at 231 (finding

prejudice to be effectively cured by jury instructions to disregard a

codefendant's outburst during which he made a death threat to a witness

during that witness'stestimony). We therefore hold that Hill's outburst falls

short of the rare circumstances in which a codefendant's disruption results

in incurable prejudice such that a mistrial is required.

E. Denial of Motions to Sever

Next, we consider Phillips's severance motion. Phillips contends that

the district court abused its discretion in denying his motion for severance,

which he filed after Hill's outburst and removal from the courtroom. The

Government argues that the district court acted within its discretion when it

denied Phillips's request to sever.

This court reviews a district court's "decision not to sever under the

exceedingly deferential abuse of discretion standard.” United States v.

Daniel, 933 F.3d 370, 380 (5th Cir. 2019) (internal quotation marks omitted).

Moreover, we will not reverse a district court's decision not to sever unless

the defendant establishes "clear, specific and compelling prejudice that

resulted in an unfair trial.” United States v. Huntsberry, 956 F.3d 270, 287

(5th Cir. 2020) (internal quotation marks omitted).

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On top of the abuse of discretion standard, a defendant challenging

the court's denial of his request to sever also faces a second burden of

precedent, which "does not reflect a liberal attitude toward severance.”

Daniel, 933 F.3d at 380. Rather, "[t]o promote judicial economy and the

interests of justice,” there is a strong preference in the federal system for

joint trials of defendants indicted together. Id.; see also Zafiro v. United States,

506 U.S. 534, 540 (1993). To overcome this high burden, the defendant must

show a "specific and compelling prejudice” resulting from the joint trial.

United States v. Owens, 683 F.3d 93, 98 (5th Cir. 2012). The defendant must

also show that he was not adequately protected from this prejudice by

limiting instructions to the jury, id., and that this prejudice "outweighed the

government's interest in economy of judicial administration[.]” Daniel, 933

F.3d at 380.

Additionally, it is not enough for a defendant to "alleg[e] a spillover

effect[,] whereby the jury imputes the defendant's guilt based on evidence

presented against his codefendants[.]” United States v. Reed, 908 F.3d 102,

114 (5th Cir. 2018) (internal quotation marks omitted), cert. denied, 139 S. Ct.

2655 (2019). Rather, "severance is required on the basis of a disparity in the

evidence only in the most extreme cases.” Owens, 683 F.3d at 100 (emphasis

in original) (internal quotation marks omitted).

Even in cases involving a high risk of prejudice, limiting instructions

will often suffice to cure this risk. Id. at 381. The Federal Rules of Criminal

Procedure do not require severance based on prejudice, but provide that the

court may sever or "provide any other relief that justice requires.” Fed. R.

Crim. P. 14(a); see also Zafiro, 506 U.S. at 539 (explaining that Rule 14

"leaves the tailoring of the relief to be granted, if any, to the district court's

sound judgment.”). To overcome the presumption that juries "follow the

instructions given to them by the district court,” a defendant "must identify

specific instances of prejudice unremedied by limiting instructions.” Daniel,

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933 F.3d at 381. Further, a "conclusory assertion” that the jury was unable

to follow limiting instructions is insufficient. Reed, 908 F.3d at 114.

Phillips argues that the prejudice against him was specific and

compelling enough that severance was required. He contends that while he

was charged under the same superseding indictments as his codefendants, he

was not involved in or charged with the death of the armored car driver

during the Wells Fargo murder-robbery, and thus that the evidence

presented to support that count was severely prejudicial to him. The

Government argues that the district court acted within its discretion in

declining to order severance because, first, the Wells Fargo murder-robbery

and the Amegy Bank attempted murder-robbery were "so completely

intertwined,” and, second, the district court gave strong limiting instructions

throughout the trial to minimize the risk of prejudice.

Phillips urges that the facts here resemble cases in which we have held

that the district court abused its discretion in denying appellant's request for

severance. See, e.g., United States v. McRae, 702 F.3d 806, 828 (5th Cir. 2012).

However, these cases are distinguishable. In McRae, this court held that the

district court abused its discretion in declining to sever the case of one

defendant, Warren, from those of his codefendants. 702 F.3d 806 (5th Cir.

2012). There, Warren was charged only with depriving a victim, Glover, of

his right to be free from the use of unreasonable force by a law enforcement

officer, and carrying, using, and discharging a firearm in furtherance of a

felony crime of violence resulting in death. His codefendants, on the other

hand, were charged additionally under civil rights statutes for beating two

men, burning one of their cars, and burning Glover's body. Id. at 824.

Warren's codefendants were also charged with obstruction of justice for

interference with the investigation into these crimes, and with the use of fire

to commit civil rights deprivations and obstructions, with preparing and

submitting a false narrative with intent to obstruct the investigation of the

Glover shooting, and with making false statements to a federal grand jury. Id.

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This court found there that the district court had erred by refusing to

sever Warren's trial. Id. at 842. In making this determination, we

emphasized that if Warren had been tried alone the trial would have lasted

approximately three days, whereas there he endured a month-long trial

saddled by prejudicial evidence and testimony unrelated to his charges. Id. at

825–26.

We have indicated that the McRae decision was narrow and based on

the facts presented in that case. For example, in United States v. Reed, we

stated,

Steven Reed points to our decision in [McRae] where we

reversed a district court's refusal to sever one police officer's

officer-involved shooting trial from the trial of a set of other

police officers who separately attempted to cover up the

shooting. Unlike in McRae, the evidence presented against

Walter Reed on the counts only pertaining to him (the tax

return, mail fraud, and certain wire fraud counts) was not so

inflammatory that the jury would find it highly difficult to

dissociate it from Steven Reed's conduct. Further, the charge

and evidence against Steven Reed was significantly related to

the charge and evidence against Walter Reed on the campaign

funds counts, whereas in McRae, two sets of defendants were

effectively being tried for two completely different offenses and

the only link was that one offense was the "catalyst” for the

other.

903 F.3d 102, 114 n.40 (5th Cir. 2018); see also United States v. LedezmaCepeda, 894 F.3d 686 (5th Cir. 2018) (distinguishing McRae on the grounds

that, in McRae, Warren was not a member of the conspiracy and had

committed crimes qualitatively less severe than those of his codefendants).

In comparison, here, the evidence presented against Phillips's

codefendants alone "was not so inflammatory that the jury would find it

highly difficult to dissociate it from” Phillips's conduct. Reed, 903 F.3d at

114 n.40. As in Reed, "the charge and evidence against [Phillips] was

significantly related to the charge and evidence” against his codefendants

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"whereas in McRae, two sets of defendants were effectively being tried for

two completely different offenses and the only link was that one offense was

the "catalyst” for the other.” Id. Although Phillips was not charged with

Counts 1 and 2 regarding the Wells Fargo robbery, and makes much of the

fact that that robbery resulted in the death of an armored truck driver, Phillips

was charged for the Amegy Bank robbery, during which Batiste's death

occurred and which involved the planned murder of another armored truck

driver. Under those circumstances, the evidence presented against the other

Defendants on Counts 1 and 2 was not so much more inflammatory than the

conduct for which Phillips was charged that "jury would find it highly

difficult to dissociate it from” Phillips's own conduct. Reed, 903 F.3d at 114

n.40. The charges against Phillips do not differ dramatically from those

against his codefendants. See id.; see also United States v. Erwin, 793 F.2d 656,

666 (5th Cir. 1986) (finding error in refusing to sever as to one defendant

against whom the charges were "only peripherally” related to those against

the other defendants). Therefore, we hold that the district court did not

abuse its discretion in denying Phillips's motion for severance.

F. Agent Coughlin's Testimony Regarding Coded Language

At trial, the Government's case-in-chief began with Agent Coughlin,

whose testimony focused in part on cell phone evidence from the wiretapping

of Batiste's phone. Agent Coughlin testified that the investigation had

occupied "75 to 80 percent of [his] time[,]” and that he had spent "a massive

amount of time” reviewing all the evidence. When the Government played

Batiste's wiretapped calls, Agent Coughlin frequently provided

interpretations of any coded language. For example, he explained that

Batiste's reference to "savage mode” meant executing the robbery while

armored car guards moved the money from a broken armored truck to a

second truck.

Phillips argues that the district court erred by allowing Agent

Coughlin to provide lay-opinion testimony regarding his interpretation of

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coded language in the wiretapped phone calls. The Government argues that

the district court did not err, much less commit reversible plain error, by

allowing Agent Coughlin's lay testimony about the wiretapped phone calls.

The parties debate the applicable standard of review. Phillips argues

that the issue should be reviewed for abuse of discretion. The Government

contends that the issue should be reviewed for plain error. This court reviews

"preserved objections regarding the admission of expert or lay testimony for

abuse of discretion, subject to harmless error analysis.” United States v.

Haines, 803 F.3d 713, 726 (5th Cir. 2015). "Unpreserved errors of the same

variety are reviewed for plain error.” Maes, 961 F.3d at 372. "To be

considered preserved for appeal, a defendant's objection to a district court's

ruling must be on the specific grounds raised below.” Id.

Phillips argues that the standard of review for the admissibility of the

lay-opinion testimony is abuse of discretion because that is the applicable

standard of review on appeal for the admissibility of evidence. United States

v. Westmoreland, 841 F.2d 572, 578 (5th Cir. 1988), cert. denied, 488 U.S. 820

(1988); United States v. Stephenson, 887 F.2d 57, 59 (5th Cir. 1989), cert.

denied, 493 U.S. 1086 (1990). However, as the Government points out, this

case presents two wrinkles. First, Phillips did not object to Coughlin's

testimony: his codefendant Scott did. A defendant typically "must bring his

own objections to preserve them.” United States v. Evans, 892 F.3d 692, 711

n.1 (5th Cir. 2018). However, we have sometimes considered an evidentiary

objection by a codefendant "sufficient to invoke the abuse of discretion

standard[.]” United States v. Sanchez-Sotelo, 8 F.3d 202, 210 (5th Cir. 1993);

see also United States v. Westbrook, 119 F.3d 1176, 1185 (5th Cir. 1997); but see

United States v. Belanger, 890 F.3d 13, 27 (1st Cir. 2018) (reviewing argument

concerning wiretap evidence for plain error when only a codefendant

objected).

Second, even assuming Scott's objection was adequate to preserve the

issue for abuse of discretion review, the Government argues that it should

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only extend to the "specific grounds raised below” by Scott. Maes, 961 F.3d

at 372 (internal quotation marks omitted). The Government contends that

Scott's objections were not that Agent Coughlin was unqualified to provide

lay testimony on the meaning of the coded language in the wiretapped calls,

but instead that he challenged only Coughlin's testimony regarding two

specific calls. Thus, the Government contends, only a challenge to

Coughlin's testimony regarding those two calls would be preserved for abuse

of discretion review, and the rest would be reviewed for plain error. Because

we find that Phillips's claim fails under either abuse of discretion or plain

error review, we go forward applying the less stringent abuse of discretion

review.

Federal Rule of Evidence 701 provides that a witness may offer lay

opinion testimony when "it has the effect of describing something that the

jurors could not otherwise experience for themselves by drawing upon the

witness's sensory and experiential observations that were made as a firsthand witness to a particular event.” United States v. Haines, 803 F.3d 713,

733 (5th Cir. 2015) (cleaned up). By contrast, a witness's "[t]estimony on

topics that the jury is fully capable of determining for itself is not 'helpful to

clearly understanding the witness's testimony,' and therefore is inadmissible

under Rule 701.” Id. (citing, quoting Fed. R. Evid. 701).

As the Government points out, this court has consistently held that

law enforcement agents may "draw upon their familiarity with a particular

case . . . to provide lay opinion testimony regarding the meaning of specific

words and terms used by the particular defendants in the case.” United States

v. Staggers, 961 F.3d 745, 761 (5th Cir. 2020) (internal quotation marks

omitted), cert. denied, 141 S. Ct. 388; accord, e.g., Haines, 803 F.3d at 729;

United States v. Akins, 746 F.3d 590, 599–600 (5th Cir. 2014); United States

v. El-Mezain, 664 F.3d 467, 514 (5th Cir. 2011). "[E]xplaining the meanings

of terms as used in the conversations and documents, as well as the

relationships between the people the agent is investigating, provides the jury

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with relevant factual information about the investigation.” Haines, 803 F.3d

at 729 (cleaned up).

The Government argues that, as in those cases, the district court here

properly allowed Agent Coughlin's lay testimony of his interpretation of the

calls because his participation in the case was extensive. See, e.g., Staggers,

961 F.3d at 761 (summarizing a case agent's extensive involvement in the

investigation); Akins, 746 F.3d at 599–600 (same). Coughlin not only led the

investigation from the start, but he also spent "75 to 80 percent of [his] time”

at work on the case. Coughlin "had much more insight into the meaning of

the code words than did the jury.” United States v. Macedo-Flores, 788 F.3d

181, 192 (5th Cir. 2015) (approving coded language testimony). Coughlin was

therefore qualified to provide his opinion "regarding the meaning of specific

words and terms used by the particular defendants in the case.” Staggers, 961

F.3d at 761 (internal quotation marks omitted).

Phillips argues that Agent Coughlin's testimony usurped the function

of the jury to draw inferences on its own from the evidence presented. He

cites only one precedential case6

to support the argument that the admission

of Coughlin's testimony was improper: United States v. Haines, 803 F.3d 713

(5th Cir 2015). Haines fails to help Phillips. There, a DEA agent testified to

his interpretations of jargon in intercepted calls to prove a drug conspiracy.

Id. at 713. We concluded that the agent's testimony was admitted in error

because "it went beyond [the agent]'s expertise and personal knowledge of

6 Phillips's citations to other circuits' precedents are unhelpful to him as they

involve cases where the court found that the agent lacked sufficient knowledge to lay a

proper foundation for lay witness testimony, United States v. Freeman, 730 F.3d 590, 593

(6th Cir. 2013), or where the court found that the agent's testimony usurped the function

of the jury because it effectively explained to the jury how it should interpret the phone

calls in question rather than providing definitional information for opaque coded language,

United States v. Grinage, 390 F.3d 746, 748–49 (2d Cir. 2004), or where the agent provided

definitional information for not only coded language, but also "plain English words and

phrases.” United States v. Peoples, 250 F.3d 630, 639–40 (8th Cir. 2001). In contrast, here,

Coughlin provided only definitional information about coded language used by Defendants

based on his expertise and personal knowledge of the investigation.

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the investigation and instead ventured into speculation, usurping the jury's

function, which is to draw its own inferences from the evidence presented.”

Id. at 734. But in Haines we made a distinction between the kind of lay

testimony as to the meaning of coded words based on an agent's

"experiential observations[,]” see Haines, 803 F.3d at 733, which we found

permissible, and testifying as to the meaning of common words such as, in

that case, "what,” "she,” "that,” and "stuff,” which we found

impermissible. See also United States v. Peoples, 250 F.3d 630, 639–40 (8th

Cir. 2001) (making the same distinction). As the Government points out,

Phillips's argument does not account for the different holdings for these two

categories. Here, Coughlin's testimony falls into the first, permissible

category. The coded meanings about which Coughlin testified were not as to

common words, but rather to opaque terms and phrases such as "the

commissary is coming,” "savage mode,” "hellos,” and "African devil.”

This court has approved coded-language testimony under similar

circumstances. See Haines, 803 F.3d at 729 (proper for agent to opine that

"the phrase 'I'll be up there' is a reference to Houston, Texas”); Staggers,

961 F.3d at 761 (proper for agent to opine "that the terms 'gator meat' and

'alligator'” referred to heroin). Coughlin's testimony therefore did not, as

Phillips argues, impermissibly usurp the function of the jury.

G. Confrontation Clause

Agent Coughlin's testimony also concerned reports of information

extracted from Defendants' cellphones. However, rather than the full,

mechanically extracted reports, Coughlin testified to versions of the

extraction reports that he had himself edited down to those portions he

deemed relevant. Polk, Scott, and Hill raised Sixth Amendment objections

to this, asserting that, because Coughlin did not personally extract the reports

from their cell phones or observe the extraction, his testimony violated the

Sixth Amendment's Confrontation Clause. The court overruled the

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objections, accepting the Government's argument that the reports were not

"opinion piece[s]” in which someone was "evaluating the evidence[.]”

Polk and Scott argue on appeal that the district court violated their

Sixth Amendment rights under the Confrontation Clause by allowing Agent

Coughlin to testify concerning data reports which were extracted from

Defendants' cell phones. The Government argues that the cell-phone

extraction reports were not testimonial statements triggering the

Confrontation Clause because the reports are raw, machine produced data

that contained no independent analysis or opinion.

"This court reviews de novo a timely Confrontation Clause objection,

subject to harmless error analysis.” United States v. Morgan, 505 F.3d 332,

338 (5th Cir. 2007) (per curiam). But when the defendant's objection is

untimely, this court's review is for plain error. United States v. Martinez-Rios,

595 F.3d 581, 584 (5th Cir. 2010) (per curiam). The parties disagree about

whether the Defendants' objections were timely. The Government argues,

based on the Southern District of Texas Criminal Local Rules, that

Defendants were required to make any objection to exhibits at least seven

days before trial, and that failure to object in writing pretrial "concedes

authenticity.” S.D. Tex. Crim. L.R. 55.2. Thus, it argues that the

Defendants' objections made during Coughlin's testimony were untimely.

However, as Scott points out, Judge Werlein had specifically stated

that he would rule on any objections to exhibits at the time they were offered.

And Judge Hittner, once the case was transferred to him, stated that all of

Judge Werlein's former rulings remained in effect. Arguably, then, this

relieved Defendants of the requirement to bring objections to exhibits in

writing at least seven days before trial. We thus proceed on the assumption

that Judge Werline's rulings remained in effect and that de novo review is the

correct standard of review.

The Confrontation Clause of the Sixth Amendment, in pertinent part,

provides that "[i]n all criminal prosecutions, the accused shall enjoy the right

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. . . to be confronted with the witnesses against him.” U.S. CONST.

amend. VI. In Crawford v. Washington, 541 U.S. 36, 68 (2004), the

Supreme Court held that fidelity to the Confrontation Clause permitted

admission of "[t]estimonial statements of witnesses absent from trial . . . only

where the declarant is unavailable, and only where the defendant has had a

prior opportunity to cross-examine.” Id. at 59; see also Michigan v. Bryant,

562 U.S. 344, 354 (2011) ("[F]or testimonial evidence to be admissible, the

Sixth Amendment 'demands what the common law required: unavailability

[of the witness] and a prior opportunity for cross-examination.'” (quoting

Crawford, 541 U.S. at 68)). In Melendez–Diaz, relying on Crawford's

rationale, the Court refused to create a "forensic evidence” exception to this

rule. 557 U.S. 305, 317–21. There, the Court held that an analyst's

certification prepared in connection with a criminal investigation or

prosecution was "testimonial,” and therefore within the compass of the

Confrontation Clause. Id. at 321–324.

Applying Melendez-Diaz, the Supreme Court held that a forensic

analyst who had not performed or observed a blood-alcohol test could not

testify to the forensic report certifying the test's result under the

Confrontation Clause. Bullcoming v. New Mexico, 564 U.S. 652, 662 (2011).

But on the other hand, on plain error review, this court has found no error in

district courts admitting reports containing only "raw, machine-produced

data[;]” in those cases, GPS cellphone tracking reports. See United States v.

Waguespack, 935 F.3d 322, 333–34 (5th Cir. 2019), cert. denied, 140 S. Ct. 827

(2020); United States v. Ballestros, 751 F.App'x 579, 579–80 (5th Cir. 2019)

(unpublished), cert. denied, 139 S. Ct. 2706 (2019). In so doing, we have

explained that multiple other circuits have also held that "machine

statements aren't hearsay.” United States v. Lizarraga-Tirado, 789 F.3d

1107, 1110 (9th Cir. 2015) (satellite images with machine generated location

markers); United States v. Lamons, 532 F.3d 1251, 1263 (11th Cir.2008) (cell

phone call and billing records); United States v. Moon, 512 F.3d 359, 362 (7th

Cir. 2008) (raw drug test data; "The report has two kinds of information: the

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readings taken from the instruments, and [the witness's] conclusion that

these readings mean that the tested substance was cocaine.”); United States

v. Washington, 498 F.3d 225, 230 (4th Cir. 2007) (raw drug test data); United

States v. Hamilton, 413 F.3d 1138, 1142 (10th Cir. 2005) (computer generated

'header' information); United States v. Khorozian, 333 F.3d 498, 506 (3d Cir.

2003) (same).

The Government argues that, applying those principles here, the cellphone extraction reports that Agent Coughlin testified about were not

testimonial statements triggering the Confrontation Clause. Rather, the

Government asserts that, unlike the forensic reports at issue in Bullcoming

and Melendez-Diaz, these reports are raw, machine produced data that

contained no independent analysis or opinion. In the alternative, if the

reports are testimonial, the Government argues that Coughlin was in fact the

correct witness to testify to them as he was the one who curated the tens of

thousands of pages of data extracted from the cellphones into the excerpted

versions containing only the information which Coughlin deemed relevant

from which he testified.

Polk and Scott aver that the cellphone extraction reports are

testimonial; thus, that Coughlin's testimony about the extraction reports

violated their Confrontation Clause rights. They point out that, as in

Bullcoming, Coughlin did not participate in or observe the creation of the

extraction reports. Further, the Defendants argue that the extraction reports

were similar to the forensic laboratory report in Bullcoming and were thus

testimonial evidence subject to the Confrontation Clause.

We agree with the Government that the extraction reports at issue

here were non-testimonial, raw machine created data. Key differences exist

between test reports generated by a person's analysis and test reports which

are the result of machine analysis. This distinction has been illustrated by

Bullcoming and its impact on the progeny of the Seventh Circuits' Moon, 512

F.3d at 362, and the Fourth Circuits' Washington. 498 F.3d at 230. As the

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Fourth Circuit pointed out in United States v. Summers, the Supreme Court

in Bullcoming emphasized that the report in question there "contained not

only raw, machine-produced data, but also representations relating to past

events and human actions[,]” e.g., the validity of the analysis or the integrity

of the sample. 666 F.3d 192, 199 (4th Cir. 2011) (emphasis original) (cleaned

up) (citing Bullcoming, 564 U.S. at 660). Albeit on plain error review, this

court has made similar holdings, see Waguespack, 935 F.3d 322 (5th Cir.

2019), following the logic of Supreme Court precedent in Melendez-Diaz, 557

U.S. at 311, and Bullcoming, 564 U.S. at 662, in which the Court emphasized

that the reports in question were analyzed by a person and were not "only

machine-generated results, such as a printout from a gas chromatograph.”

Bullcoming, 564 U.S. at 673 (Sotomayor, concurring in part). Here, the raw

cellphone extraction reports contained "only machine-generated results,”

and were thus non-testimonial.

Even if we were to construe the curated extraction reports which were

actually admitted into evidence and testified about by Coughlin as

testimonial, Coughlin would be the correct person to testify about those

reports because he created them from the raw data. Scott argues that this

holding is akin to allowing the Government to introduce an "excerpt of an

autopsy report through a witness, claiming that the witness is the declarant

of those excerpts from the autopsy report since he created the excerpt[.]” But

this argument assumes that the underlying report being excerpted is itself

testimonial. We therefore hold that the district court did not err in allowing

Coughlin to testify to the extraction reports he had excerpted from the full,

raw machine-generated reports of Defendants' cellphone data.

H. Ex Parte Contact with a Juror

At one point during the trial, the Government notified the court that

it had learned of an incident in which someone from the courtroom gallery

followed a juror out of the courthouse and called that juror by name. The

court confirmed with the Marshals that the unidentified person was not

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someone on the witness list. 7

Polk asked the court to identify the juror and

the court refused, but the court did agree to conduct a general inquiry and

requested that defense counsel collaborate on a limiting instruction to the

jury.

After discussion, Polk stated that the Defendants were "concerned

about questioning the jury and poisoning the jurors with information that

they don't already have, or they may not even be aware of.” However, the

court again declined to identify the juror, and after further discussion, Scott

told the court that the Defendants wanted to give a jury instruction before

excusing the jury at the end of the day. Hill provided the proposed jury

instruction,8

to which each Defendant and the Government agreed. At the

end of the day, the court gave the instruction, and, after giving the jurors the

opportunity to ask questions or express any problems with the instruction,

the case manager stated that no juror had expressed concern about the

instruction. The court stated that, in that case, it did not need to call any

jurors back to discuss it, and none of the parties objected.

Hill, Polk, and Scott claim that the district court abused its discretion

by failing to adequately respond to this incident of alleged ex parte contact

with a juror. The Government responds that the Defendants waived this

argument via their conduct at trial. While we disagree that the argument has

been waived, we hold that the Defendants' argument fails on its merits.

This court reviews a district court's decision "in handling complaints

of outside influence on the jury” for abuse of discretion. United States v.

Sotelo, 97 F.3d 782, 794 (5th Cir. 1996). "The district court must balance the

probable harm resulting from the emphasis that a particular mode of inquiry

would place upon the misconduct and the disruption occasioned by such an

7

It is unclear from the record whether this person was ever definitively identified.

8

It read: "No events outside the courtroom should affect your ability to be a fair

and impartial juror. Your verdict must be based upon the testimony of the witnesses and

the evidence presented to you during trial.”

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inquiry against the likely extent and gravity of the prejudice generated by the

misconduct.” Id. We "accord broad discretion to the trial court in these

matters[,]” recognizing the district court's unique ability to evaluate the

"mood and predilections of the jury[.]” Id.

The Government argues that the Defendants waived this argument by

formulating and agreeing to the jury instruction given in response to the ex

parte contact. "A waiver occurs by an affirmative choice by the defendant to

forego any remedy available to him, presumably for real or perceived benefits

resulting from the waiver.” United States v. Richard, 901 F.3d 514, 517 (5th

Cir. 2018) (internal quotation marks omitted). However, the cases the

Government cites to support this argument found waiver where a defendant

affirmatively agreed to a jury instruction and then sought to claim error based

on the instruction itself. See United States v. LeBeau, 949 F.3d 334, 342 (7th

Cir. 2020); cert. denied, 141 S. Ct. 261; United States v. Feldman, 931 F.3d

1245, 1260 (11th Cir. 2019), cert. denied, 140 S. Ct. 2658 (2020). The

Government also relies on an unpublished case from this circuit which found

waiver where a defendant sought to challenge the court's resolution of an

issue when he had explicitly agreed to the decided course of action in a prior

proceeding. United States v. Hoover, 664 F. App'x 363, 366 (5th Cir. 2016)

(unpublished).

We disagree that the Defendants have waived this issue. Unlike in the

cases on which the Government relies, the Defendants here did not

affirmatively agree with the district court's course of action in attempting to

rectify the ex parte contact with a jury instruction; instead, once the court

determined that a jury instruction would suffice to rectify the alleged ex parte

contact, the Defendants agreed to the wording of the instruction itself, which

they do not challenge here. The argument that the Defendants seek to

raise—that the district court did not sufficiently inquire into the alleged ex

parte contact before determining that a jury instruction would be sufficient

to cure any resultant prejudice—was therefore not waived.

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Nonetheless, we agree with the Government that the Defendants'

argument fails on the merits. We afford broad discretion to district courts to

tailor the appropriate response to incidents like this, trusting them, as the

courts of first impression, to "balance the probable harm resulting from the

emphasis that a particular mode of inquiry would place upon the misconduct

and the disruption occasioned by such an inquiry against the likely extent and

gravity of the prejudice generated by the misconduct.” Sotelo, 97 F.3d at 794.

The Government contends that the district court's response to the

alleged ex parte contact was wholly within its discretion. By adopting a

neutral cautionary instruction, the Government urges that the district court

acted well within the court's "broad discretion to fashion an investigation.”

Sotelo, 97 F.3d at 797. Moreover, as the Government points out, the

Defendants themselves recognized the risk that a formal investigation of this

incident might itself cause prejudice by providing the jurors with information

they did not already have.

Defendants argue that the district court abused its discretion in failing

to conduct a sufficient inquiry into the ex parte contact. Polk contends that

"the nature, circumstances, prejudicial impact on the case, and how it

affected the jury was not investigated much less determined.” Hill argues

that the court should have called potential witnesses to determine the

prejudicial impact of the contact. However, the Defendants' arguments

ultimately amount to a disagreement with the mode of inquiry chosen by the

court to investigate and address the ex parte contact. A requirement like the

one Defendants propose, that a district court inquire in a specific way into an

allegation of ex parte contact, does not comport with the broad discretion

afforded to district courts to individually tailor effective mitigation of such

incidents. We therefore hold that the district court did not abuse its

discretion by insufficiently inquiring into the allegation of ex parte contact.

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I. Sufficiency of the Evidence

Phillips next contends that the evidence was insufficient to support his

conviction on Count Three, attempted Hobbs Act Robbery, 18 U.S.C. §

1951(a). The Government argues that, viewing the evidence in the light most

favorable to the verdict, there was sufficient evidence to support Phillips's

convictions.

When a defendant preserves a challenge to the sufficiency of the

evidence, this court's review is de novo. See, e.g., United States v. Dailey, 868

F.3d 322, 327 (5th Cir. 2017). Sufficient evidence supports a jury's verdict

so long as "a rational trier of fact could have found the elements of the crime

beyond a reasonable doubt.” Dailey, 868 F.3d at 327. Sufficiency review is

"highly deferential” to the jury's determination of guilt. United States v.

Zamora-Salazar, 860 F.3d 826, 831 (5th Cir. 2017). This court may not

reweigh the evidence, nor second-guess "[c]redibility choices that support

the jury's verdict[,]” id. at 832; rather, it must view all evidence, reasonable

inferences, and credibility choices in the light most favorable to that verdict.

See, e.g., Dailey, 868 F.3d at 327.

There are two elements of a Hobbs Act violation: "(1) robbery,

extortion, or an attempt or conspiracy to rob or extort (2) that affects

commerce.” United States v. Avalos-Sanchez, 975 F.3d 436, 440 (5th Cir.

2020) (footnotes omitted). To be convicted of attempt, "the evidence must

show the defendant (1) acted with the culpability required to commit the

underlying substantive offense, and (2) took a substantial step toward its

commission.” United States v. McGee, 821 F.3d 644, 647 (5th Cir. 2016)

(internal quotation marks omitted). A defendant's "mere preparation” does

not meet the substantial-step requirement. See, e.g., United States v. Howard,

766 F.3d 414, 419 (5th Cir. 2014). But a substantial step "is less than the last

act necessary before the crime is in fact committed[;]” it simply requires

"conduct that strongly corroborates the firmness of the defendant's criminal

intent.” Id. (internal quotation marks omitted). This requirement "prevents

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the conviction of persons engaged in innocent acts on the basis of a mens rea

proved through speculative inferences, unreliable forms of testimony, and

past criminal conduct.” United States v. Oviedo, 525 F.2d 881, 884–85 (5th

Cir. 1976).

Phillips challenges only the sufficiency of the evidence supporting the

determination that he took a substantial step toward commission of

attempted Hobbs Act robbery. He points to his lack of participation and

communication on the day of the attempted murder-robbery to support his

argument. On the other hand, the Government argues that there was

abundant evidence that Phillips took substantial steps toward committing the

offense. The Government argues that, taken together, the evidence it

presented about Phillips's participation in the conspiracy to commit the

attempted murder-robbery conclusively corroborates the firmness of

Phillips's criminal intent. Howard, 766 F.3d at 419.

We agree that sufficient evidence supports the jury's determination

that Phillips took the substantial step necessary to convict him of Count

Three. Phillips's lack of participation on the day of the attempted murderrobbery does not negate the substantial evidence presented that Phillips

intended and took substantial steps toward committing the offense, including

Phillips's recruitment of Duncan-Bush to the scheme, his delivery of

Duncan-Bush's burner phone, and his compliance with Batiste's orders to

drive Duncan-Bush to a nearby hotel to review plans ahead of the bank

robbery. Further, Phillips was not required to participate in the attempted

murder-robbery's final acts in order to take a "substantial step.” Howard,

766 F.3d at 419. Taking the evidence in the light most favorable to the

verdict, Phillips at the very least was integral in recruiting Duncan-Bush and

facilitating and directing his participation in the attempted Amegy Bank

robbery. On this record, "a rational trier of fact could have found the

elements of the crime beyond a reasonable doubt.” Dailey, 868 F.3d at 327.

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J. Are Aiding and Abetting Hobbs Act Robbery and Attempted Hobbs

Act Robbery Crimes of Violence?

Hill argues that aiding and abetting Hobbs Act robbery is not a crime

of violence under 18 U.S.C. § 924(c)'s elements clause and thus cannot

support his conviction under Count Two. Similarly, all four Defendants

argue that attempted Hobbs Act robbery is not a crime of violence under 18

U.S.C. § 924(c)'s elements clause and thus cannot support their convictions

under Count Four.

This court reviews the legal question of whether a predicate offense

qualifies as a crime of violence de novo. See, e.g., United States v. Smith, 957

F.3d 590, 592 (5th Cir. 2020), cert. denied, 141 S. Ct. 828 (2020). In United

States v. Davis, the Supreme Court held that the residual clause of

§ 924(c)(3)(B) was unconstitutionally vague. 139 S. Ct. 2319, 2366 (2019).

But a defendant's § 924(c) "convictions can still be sustained if the predicate

offenses. . . can be defined as a [crime of violence] under the elements clause

contained in § 924(c)(3)(A).” Smith, 957 F.3d at 592–93.

Our precedents establish that Hobbs Act robbery is a crime of violence

under the elements clause. See United States v. Bowens, 907 F.3d 347, 353-54

(5th Cir. 2018) ("As the government correctly notes, binding circuit

precedent forecloses Bowens's claim that Hobbs Act robbery is not a [crime

of violence] predicate . . . .”). While we have not addressed whether aiding

and abetting Hobbs Act robbery is a crime of violence, our sister circuits have

uniformly held that, because there is no distinction between those convicted

of aiding and abetting and those convicted as a principal under federal law,

aiding and abetting a crime of violence qualifies as a crime of violence as well.

United States v. García, 904 F.3d 102, 109 (1st Cir. 2018); United States v.

Waite, 12 F.4th 204, 212, 219 (2d Cir. 2021), vacated on other grounds, 142 S.

Ct. 2864; United States v. McKelvey, 773 F. App'x 74, 75 (3d Cir. 2019);

United States v. Caldwell, 7 F.4th 191, 212–13 (4th Cir. 2021); United States v.

Richardson, 948 F.3d 733, 742 (6th Cir. 2020); United States v. Brown, 973

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F.3d 667, 697 (7th Cir. 2020); Young v. United States, 22 F.4th 1115, 1122–23

(9th Cir. 2022); United States v. Deiter, 890 F.3d 1203, 1214–16 (10th Cir.

2018); In re Colon, 826 F.3d 1301, 1305 (11th Cir. 2016).

Our precedent is consistent with this understanding of aiding and

abetting law, and, like our sister circuits, we conclude that the substantive

equivalence of aiding and abetting liability with principal liability means that

aiding and abetting Hobbs Act robbery is, like Hobbs Act robbery itself, a

crime of violence. "Title 18 U.S.C. § 2 does not establish a separate crime

of 'aiding and abetting,'” United States v. Pearson, 667 F.2d 12, 13 (5th Cir.

Unit B 1982); instead aiding and abetting "is simply a different way of

proving liability for the same activity criminalized elsewhere even if the aider

and abettor did not himself commit all elements of the substantive offense,”

United States v. Rabhan, 540 F.3d 344, 348 n.15 (5th Cir. 2008). "The

government ha[s] to prove each element of the crime, but thanks to 18 U.S.C.

§ 2, it [does] not have to show that [the particular defendant] committed the

acts constituting each element.” Pearson, 667 F.2d at 14. "[A] showing that

[the defendant] aided and abetted each element of the substantive offense

subjects him to punishment under section 2 as a principal in the underlying

offense.” United States v. Vasquez, 953 F.2d 176, 183 (5th Cir. 1992). In that

way, "all participants in conduct violating a federal criminal statute are

'principals.'” Bowens, 907 F.3d at 351 (quoting Standefer v. United States,

447 U.S. 10, 20 (1980)); see also United States v. Williams, 449 F.3d 635, 647

(5th Cir. 2006) ("Under the general aiding and abetting statute, a person who

aids and abets the commission of an offense is treated the same as a principal

actor.”). Accordingly, we conclude that aiding and abetting Hobbs Act

robbery is a crime of violence under the elements clause, and Hill's

conviction on Count Two is valid.

However, the Supreme Court has recently held that attempted Hobbs

Act robbery does not qualify as a crime of violence under the elements clause.

United States v. Taylor, 142 S. Ct. 2015, 2021 (2022). Accordingly, we must

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vacate the Defendants' convictions on Count Four.9 Cf. United States v.

Lewis, 907 F.3d 891, 893 (5th Cir. 2018). Because the Defendants' sentences

on the remaining counts are not "interrelated or interdependent” on Count

Four, resentencing is unnecessary. See United States v. Clark, 816 F.3d 350,

360 (5th Cir. 2016).

K. Sentencing Enhancement U.S.S.G. § 2B3.1(c)(1)

Finally, Phillips, Polk, and Scott contend that the district court erred

in applying sentencing enhancement U.S.S.G. § 2B3.1(c)(1) to their Count

Three convictions based on the killing of Batiste by police during the

attempted Amegy Bank ATM robbery. This enhancement, in pertinent part,

instructs district courts to apply § 2A1.1, the first-degree-murder Guideline,

"[i]f a victim was killed under circumstances that would constitute murder

under 18 U.S.C. § 1111[.]” Phillips renews his argument on appeal that the

district court erroneously applied this sentencing enhancement because

Batiste was not a "victim” under the meaning of the Guidelines; that is, that

a coconspirator who is killed during the commission of a crime does not

constitute a "victim” for the purpose of applying this enhancement.

Additionally, Polk and Scott, along with Phillips, raise the new theory that

this enhancement was erroneously applied because Batiste's killing by law

enforcement was not a killing "under circumstances that would constitute

murder under 18 U.S.C. § 1111[.]”

When an issue is preserved, this court reviews the district court's

interpretation of the Guidelines de novo and its underlying factual findings for

clear error. See, e.g., United States v. Narez-Garcia, 819 F.3d 146, 149 (5th

Cir. 2016). But when "the basis for the defendant's objection during trial is

different from the theory [he or] she raises on appeal[,]” this court's review

is for plain error. United States v. Sanders, 952 F.3d 263, 282 (5th Cir. 2020)

9 Because we vacate the Defendants' convictions on Count Four, we need not

address Phillips's argument that there was insufficient evidence to support his conviction.

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(cleaned up). In the Guidelines context, an objection in the district court to

an enhancement on one ground does not preserve for appeal alternative

arguments against that enhancement. Narez-Garcia, 819 F.3d at 149. Thus,

we review Phillips's preserved challenge de novo and Polk and Scott's newly

raised claim for plain error.

Polk, Scott, and Phillips raise an unpreserved challenge to the

application of sentencing enhancement U.S.S.G. § 2B3.1(c)(1), arguing that

Batiste's killing by law enforcement was not a killing "under circumstances

that would constitute murder” under the Guidelines' definition. They argue

that this court should impose felony-murder liability under a theory of agency

liability, rather than a proximate cause theory. U.S.S.G. § 2B3.1(c)(1).

Under agency theory, the felony murder doctrine does not allow the killing

of a coconspirator by police to be imputed to his fellow conspirator because

the police do not act as agents of the conspiracy; however, the proximate

cause theory does allow this imputation, as the commission or attempted

commission of the underlying crime is still the proximate cause of the killing

by police. See, e.g., Moore v. Wyrick, 766 F.2d 1253, 1255–56 (8th Cir. 1985)

(defining and contrasting these two theories of felony murder liability).

This new challenge cannot succeed on plain error review. As the

Government points out, the Defendants cite no binding caselaw which

adopts either the agency theory or the proximate cause theory of felony

murder in this context. Thus, any potential error is not plain. See United

States v. Gonzalez, 792 F.3d 534, 538 (5th Cir. 2015) (holding that a "lack of

binding authority is often dispositive in the plain-error context”); see also

United States v. McNabb, 958 F.3d 338, 341 (5th Cir. 2020) ("By definition, a

close call cannot be the obvious or plain error a defendant needs to show

when asserting an error he did not give the district court a chance to fix.”).

Whether Phillips's challenge to the classification of Batiste as a

"victim” can prevail on de novo review is a more complicated question. As

Phillips points out, we held in United States v. Geeslin, 447 F.3d 408 (5th Cir.

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2006) that, for the purposes of a different provision of the Guidelines, §

2B1.1(b)(1), a participant in a crime whose actions were "not entirely

voluntary” could be considered a victim, calling this a "rare

circumstance[.]” Id. at 411. Phillips's point is well taken that if it is a rare

circumstance in which a coconspirator can be considered a victim for

sentence enhancement purposes, it would seem strange to deem Batiste, the

mastermind of this robbery scheme, a victim.

Nonetheless, we need not decide this issue because the record

demonstrates that any potential error in applying the sentencing

enhancement was harmless. See, e.g., United States v. Groce, 784 F.3d 291,

296 (5th Cir. 2015) (declining to resolve a "not entirely clear” Guidelines

issue based on harmless error). "A procedural error” in applying the

Guidelines "is harmless if the error did not affect the district court's choice

of sentence.” United States v. Halverson, 897 F.3d 645, 652 (5th Cir. 2018).

There are "at least two methods for the Government to show that the district

court would have imposed the same sentence.” United States v. Vega-Garcia,

893 F.3d 326, 327 (5th Cir.) (per curiam), cert. denied, 139 S. Ct. 441 (2018).

The first requires the Government to demonstrate "that the district court

considered both ranges (the one now found incorrect and the one now

deemed correct) and explained that it would give the same sentence either

way.” Id. (internal quotation marks omitted). The second requires "the

Government to convincingly demonstrate both (1) that the district court

would have imposed the same sentence had it not made the error, and (2)

that it would have done so for the same reasons it gave at the prior

sentencing.” Id. (internal quotation marks omitted). Whichever the

method, "[a]lthough clarity of intent must be expressed, such statements do

not require magic words.” United States v. Shepherd, 848 F.3d 425, 427 (5th

Cir. 2017).

Here, the district court made explicit that it was aware of the objection

to this sentencing enhancement and the differences in the Guidelines ranges

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for the Defendants if it did not apply the enhancement. The court stated

explicitly that it would have imposed the same sentence under the 18 U.S.C.

§ 3553(a) factors even if the murder cross-reference did not apply. Thus, the

Defendants cannot show that any potential error affected their substantial

rights. We therefore affirm the district court's application of the sentencing

enhancement.

For the foregoing reasons, we VACATEthe Defendants’ convictions

as to Count Four. In all other respects, the judgment is AFFIRMED.

Nevertheless, we REMAND so that the district court can issue a judgment

reducing the special assessment and otherwise reflecting our decision.