UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-4579

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

AQUABEUS MOORE,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Charleston. Richard Mark Gergel, District Judge. (2:15-cr-00386-RMG-2)

Submitted: September 11, 2020 Decided: February 3, 2021

Before WILKINSON and MOTZ, Circuit Judges, and Kenneth D. BELL, United States District Judge for the Western District of North Carolina, sitting by designation.

Affirmed by unpublished opinion. Judge Bell wrote the opinion, in which Judge Wilkinson and Judge Motz joined.

Sharnaisha Naki Richardson-Bax, BAX LAW FIRM, PA, Beaufort, South Carolina, for Appellant. Sherri A. Lydon, United States Attorney, Columbia, South Carolina, Emily Evans Limehouse, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. BELL, District Judge:

A jury convicted Aquabeus Moore of conspiracy to commit Hobbs Act robbery, two

counts of Hobbs Act robbery, and two counts of possession of a firearm in furtherance of

a crime of violence. The district court sentenced Moore to 384 months and one day of

imprisonment. Moore advances a number of arguments on appeal, each of which are

addressed below. For the reasons that follow, we affirm.

I.

This case arises from a conspiracy to rob Rolex watches from two jewelry stores in

South Carolina. The Government alleged that Moore was a member of this conspiracy and

participated in the commission of the robberies by aiding in their preparation and acting as

the getaway driver. In its indictment, the Government charged Moore with one count of

conspiracy to commit Hobbs Act robbery and two counts of Hobbs Act robbery, in

violation of

, and two counts of possession of a firearm in furtherance of

a crime of violence, in violation of

(c).

At trial, the Government presented evidence showing that on February 19, 2015,

two masked men entered Sylvan’s Jewelers (“Sylvan’s”) in Columbia, South Carolina

around 10:30 a.m. One man carried a handgun and the other carried a hammer. The

accomplice with the gun restrained the employees while the other used the hammer to

smash the glass cases containing the Rolex watches. After obtaining the watches, the men

quickly left.

Surveillance footage from outside of Sylvan’s recorded a third accomplice driving

an older-model Oldsmobile dropping the two men off out front of Sylvan’s, waiting out

2 front of the store while the robbery occurred, and quickly driving off as soon as the two

men returned to the car. Two days after the Sylvan’s robbery, investigators located the

Oldsmobile just outside of Columbia. It contained evidence consistent with the robbery,

including broken glass and a jewelry store display item.

On March 4, 2015, a robbery occurred at Demetre Jewelers (“Demetre”) in

Charleston, South Carolina under circumstances nearly identical to the February 19, 2015

robbery at Sylvan’s. A Demetre employee testified that two masked robbers entered the

store around 10:00 a.m. One man carried a gun and used the gun to force the employee to

the ground while the second man used a hammer to smash the glass display case containing

the Rolex watches. The employee witnessed the two men leave the store and jump into the

passenger side of a vehicle waiting out front. The vehicle immediately drove away,

indicating that a third accomplice remained inside the vehicle while the robbery took place.

Security camera footage showed that the vehicle out front was a dark colored minivan.

Investigators were able to link Moore to the cars used in the Sylvan’s and Demetre

robberies through witnesses, DNA evidence, and latent fingerprints. Text messages

discovered on phones connected to Moore and his co-conspirators indicated Moore was

involved in the planning and preparation of the robberies. For example, a message sent by

the leader of the conspiracy to Moore asked if he was “ready to be a driver on one of them

missions I’ll give you four bands” and another reminded Moore to “[g]et the gloves three

pair.” Cell tower data showed that a cell phone attributed to Moore travelled from the

Atlanta area to Columbia the night before the Sylvan’s robbery, was in the area of the

Sylvan’s robbery when it occurred, and travelled back to Atlanta after the robbery.

3 Similarly, Moore’s phone travelled from Atlanta to Charleston the night before the

Demetre robbery, was in the area of the Demetre robbery at the time it occurred, and

travelled back to Atlanta immediately after the robbery. Cell records also showed that

Moore communicated with the leader of the conspiracy for 17 minutes during the time of

the Demetre robbery through a cell tower in downtown Charleston.

Based on the cell phone records and fingerprints left on the van, law enforcement

was able to obtain an arrest warrant for Moore. At the time of his arrest, Moore had a

firearm in his left rear waistband that strongly resembled the firearm captured on

surveillance video during the Demetre robbery. During an interview with law enforcement,

Moore admitted to his involvement in the Charleston robbery, and specifically that he had

acted as the getaway driver. Moore also allowed law enforcement to download the contents

of his phone. Agents found two photos of a Rolex watch that shared the same serial number

as one of the watches reported stolen from Sylvan’s.

After a four-day trial, the jury convicted Moore on all counts. The district court

sentenced Moore to imprisonment for 384 months and one day. He noted this timely

appeal.

II.

Moore first contends that the district court erred by denying his motion for judgment

of acquittal because there was insufficient evidence to convict him on the § 924(c) charges.

Moore was charged with violating § 924(c) as a principal, aider and abettor, and co-

conspirator. The general verdict form did not specify which theory the jury relied on for

the § 924(c) convictions. Moore alleges that the Government failed to provide evidence

4 that he had any knowledge that a firearm would be used in the robberies, especially no

“advanced knowledge” that a firearm would be used so as to convict him under an aiding

and abetting theory. We disagree with Moore’s argument.

We review de novo a district court’s denial of a motion for judgment of acquittal.

United States v. Cowden,

(4th Cir. 2018). A jury verdict should be

affirmed where, “viewing the evidence in the light most favorable to the prosecution, the

verdict is supported by ‘substantial evidence.’” United States v. King,

(4th Cir. 2011). “Substantial evidence” is “evidence that a reasonable finder of fact could

accept as adequate and sufficient to support a conclusion of a defendant’s guilt beyond a

reasonable doubt.” United States v. Smith,

(4th Cir. 2006). Moreover,

throughout this Court’s review, we “assume that the jury resolved any conflicting evidence

in the prosecution’s favor.” United States v. Jeffers,

(4th Cir. 2009).

“Whoever commits an offense against the United States or aids, abets, counsels,

commands, induces or procures its commission, is punishable as a principal.”

(a). Thus, “[s]o long as all of the elements necessary to find [the defendant] guilty of the

crime, whether as principal or as aider or abetter, were put before the jury, conviction will

be proper.” United States v. Rashwan,

(4th Cir. 2003). To prove aiding

and abetting under § 924(c), the Government must show that the defendant actively

participated in the underlying violent crime with advance knowledge that “one of his

confederates will carry a gun.” Rosemond v. United States,

(2014).

“Advance knowledge” means “knowledge at a time the accomplice can do something with

it—most notably, opt to walk away.”

.

5 Evidence of a defendant’s advance knowledge need not be direct. This Circuit and

other circuits have affirmed § 924(c) convictions on an aiding and abetting theory when

there was only circumstantial evidence of a defendant’s advance knowledge. See, e.g.,

United States v. Benson,

, 238 (4th Cir. 2020); United States v. Jordan,

, 259-61 (5th Cir. 2019); United States v. Akiti,

(8th Cir. 2012);

Rosemond,

(citing Akiti approvingly); United States v. Henry,

, 499-500 (6th Cir. 2018); United States v. Hinton, 730 Fed. App’x 719, 724 (11th Cir.

2018). This Circuit has held that “where there is evidence that a defendant extensively

participated in the planning of a robbery of the type that would generally necessitate the

use of firearms, such evidence is sufficient to fulfill [the advance knowledge] requirement.”

Benson, 957 F.3d at 238.

While the Government does not contend that there was sufficient evidence to

convict Moore on a principal theory, it does argue there was ample evidence to convict

Moore on an aiding and abetting theory. The Court agrees. The Government presented

extensive circumstantial evidence from which a jury could conclude beyond a reasonable

doubt that Moore had advance knowledge that one of his confederates would carry a gun.

Evidence showed that Moore was involved in the planning of the robberies and in close

communication with the ringleader throughout the conspiracy. Witness testimony

explained that Moore helped obtain the vehicles used in the robberies, purchased supplies

in advance of the robberies, and travelled with his co-conspirators from the Atlanta area

and stayed with them in the same hotel the night before the robberies. Moreover, the

Sylvan’s and Demetre robberies were of the type that would generally necessitate the use

6 of a firearm. The robberies occurred during normal business hours, when Moore would

have known that employees and potential customers would be in the store, thereby

necessitating the need for a firearm to restrain the victims while another obtained the Rolex

watches. See Benson, 957 F.3d at 238 (discussing the circumstantial evidence in Akiti that

supported the jury’s § 924(c) conviction on an aiding and abetting theory, including that

“the plan involved robbery during business hours when multiple employees were present

(thereby necessitating a firearm)”).

A reasonable jury could also infer Moore’s advance knowledge of a firearm from

his direct participation in the robberies. As the getaway driver, Moore was in close

proximity to his armed accomplice moments before he entered the jewelry stores and

moments after the commission of the robberies. Further, Moore participated in a second

robbery even after a firearm was brandished in the first robbery. As Rosemond observed, a

defendant’s continued participation in the scheme after a gun has been displayed in the first

robbery, permits the jury to “infer from his failure to object or withdraw” that he had the

requisite foreknowledge that a gun would be used in the second.

n.9. And,

at his arrest Moore possessed a firearm that strongly resembled the firearm captured on

surveillance video during the Demetre robbery. Given evidence of Moore’s substantial

participation in the planning, preparation, and execution of the robberies, we conclude that

a reasonable jury could have inferred that Moore had advance knowledge that a firearm

would be used so as to convict him on an aiding and abetting theory.

Moreover, even if the Government presented insufficient evidence that Moore had

advance knowledge that a firearm would be used, there was ample evidence to demonstrate

7 that it was reasonably foreseeable to Moore that a co-conspirator would possess a firearm

under a Pinkerton theory of liability. Accordingly, the district court did not err in denying

Moore’s Rule 29 motion for acquittal.

III.

Second, Moore challenges the district court’s application of the § 924(c)

enhancement. When Moore was sentenced, because the firearm was brandished § 924(c)’s

sentencing regime mandated a seven-year mandatory minimum sentence for a first

conviction and a 25-year consecutive mandatory minimum for a second conviction, even

when both convictions arose from a single proceeding. See Deal v. United States,

(1993). The district court, in accordance with statutory law at the time, imposed

a seven-year sentence on Moore’s first § 924(c) conviction and 25 years on his second. In

total, Moore received a 32-year sentence for his § 924(c) convictions.

Moore first argues that his § 924(c) convictions are invalid because Hobbs Act

robbery is not a crime of violence under Johnson v. United States,

(2015),

and Sessions v. Dimaya,

(2018). This Court’s decision in United States v.

Mathis,

(4th Cir. 2019) forecloses Moore’s argument. In Mathis this Court

held that “Hobbs Act robbery constitutes a crime of violence under the force clause of

Section 924(c).”

.

Moore’s next argument is that the application of his § 924(c) enhancement is

unconstitutional under the Eighth Amendment. However, this Court has repeatedly rejected

Eighth Amendment challenges to lengthy sentences based on multiple § 924(c)

convictions. See, e.g., United States v. Khan,

(4th Cir. 2006).

8 Moore also argues that his sentence should be vacated in light of the First Step Act’s

recent amendment of § 924(c). However, this Court has already decided that the benefit of

the First Step Act does not apply to defendants like Moore. In United States v. Jordan,

(4th Cir. 2020), this Court looked to the text of the First Step Act, “which provides

that § 403(a)’s ‘amendments’ to § 924(c) ‘shall apply to any offense that was committed

before the date of enactment of this Act, if a sentence for the offense has not been imposed

as of such date of enactment.’” Id. at 171 (quoting § 403(b), 132 Stat. at 5222). Because

Moore’s sentence was imposed in August of 2017, more than a year before the “date of the

enactment” of the First Step Act on December 21, 2018, the First Step Act does not apply

to Moore’s sentence.

IV.

Third, Moore challenges the district court’s evidentiary ruling admitting the firearm

seized from his waistband during his arrest. At trial, the district court admitted the gun over

Moore’s objection under Rule 403 of the Federal Rules of Evidence. Specifically, Moore

argues that “[a]llowing the gun into evidence without any offer of proof that it was indeed

the firearm used in the robbery was more prejudicial than probative.”

We review the district court’s evidentiary rulings for abuse of discretion. United

States v. Faulls,

(4th Cir. 2016). Under Rule 403, relevant evidence may

be excluded “if its probative value is substantially outweighed by a danger of . . . unfair

prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence.” Fed. R. Evid. 403. “Where the evidence is

probative, the balance under Rule 403 should be struck in favor of admissibility, and

9 evidence should be excluded only sparingly.” United States v. Lentz,

(4th Cir. 2008) (internal quotations omitted).

We discern no abuse of discretion in the district court’s evidentiary ruling. The gun

found on Moore at his arrest was probative of his role in the charged conduct, especially in

light of his defense that he had no knowledge a gun would be used in the robberies. Law

enforcement testified that the gun found in Moore’s waistband appeared to be very similar

to the firearm in the Demetre surveillance video and went on to compare the firearm found

on Moore to the still images from the Demetre surveillance video. Cheyenne Shuler, an

employee at Sylvan’s Jewelers, described the gun used in the robbery as “something long

and silver” during her testimony at trial. This description matched the firearm found in

Moore’s waistband. Moreover, the firearm and the still images from the Demetre

surveillance video were both admitted into evidence such that the jury, as the finder of fact,

could compare the firearms and come to their own conclusion. Thus, given this evidence

and the deference given to district court judges on evidentiary rulings, we hold the district

court acted within its discretion in admitting the firearm into evidence.

V.

Moore’s fourth contention of error relates to another evidentiary ruling by the

district court. Moore argues that the district court erred in admitting into evidence

summaries of cell phone data compiled from phones tied to Moore and another co-

conspirator. Moore claims that these summaries, which were produced by law

enforcement, were “manipulated and annotated by the government’s expert witness” and

were improperly admitted into evidence.

10 As stated above, this Court reviews a district court’s evidentiary rulings for abuse

of discretion. Faulls,

. Federal Rule of Evidence 1006 states, in relevant

part, that a party “may use a summary, chart, or calculation to prove the content of

voluminous writings, recordings, or photographs that cannot be conveniently examined in

court.” Fed. R. Evid. 1006; see also United States v. Janati,

(4th Cir.

2004). Its purpose is to reduce the volume of written documents that are introduced into

evidence by allowing in evidence accurate derivatives.

(citing United States v. Bakker,

(4th Cir. 1991)).

We find no abuse of discretion in the admission of these summary exhibits. Law

enforcement produced these charts and maps using voluminous data from the cell phones

and the service providers’ cell towers. As explained at trial, a cell phone communicates

with towers (usually the tower closest to the phone) when a person sends a text, makes or

receives a voice call, or uses cellular data. Service providers record these communications.

From these records, law enforcement can extrapolate a probable area in which the phone

was located over time.

The charts and maps created by law enforcement accurately summarized the

voluminous cell phone data. Indeed, Moore does not contest the admission of the cell phone

records or other cell phone data summarized in the exhibits. Rather, Moore claims that the

charts and maps are misleading. He specifically points to the pinpoints on the map and the

arrows used to signify the alleged direction of travel before and after the robberies. The

record, however, shows that the law enforcement officer repeatedly noted at trial that the

pinpoints were the locations of the cell towers that the phones had utilized and the arrows

11 between the pinpoints showed the general direction the cell phones were travelling, which

was corroborated by the times the cell towers were pinged. Furthermore, Moore’s counsel

had the opportunity to, and did, cross-examine the law enforcement officer regarding the

markings on the map and the techniques he used in formulating his opinions.

Moore also challenges the district court’s decision to admit these summary exhibits

under Rule 403. The location of Moore’s cell phone in the days before, during, and after

the robberies is highly probative of his guilt of the charged crimes and Moore has failed to

establish how the probative value of this evidence was substantially outweighed by its

prejudicial effect. Accordingly, we find no abuse of discretion in the district court’s

admission of these exhibits.

VI.

Moore’s final argument assigns error to the district court’s denial of his motion for

a new trial. Federal Rule of Criminal Procedure 33 states that “the court may vacate any

judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a).

A district court’s Rule 33 decision is reviewed for abuse of discretion. United States v.

Fulcher,

(4th Cir. 2001). Where the evidence in the record is sufficient

to support the jury’s verdict, a Rule 33 motion must be denied. United States v. Singh,

(4th Cir. 2008). In analyzing whether newly discovered evidence requires a

new trial, the court looks to five factors:

(a) the evidence must be, in fact, newly discovered, i.e., discovered since the trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and

12 (e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal.

Robinson, 627 F.3d at 948 (citing United States v. Custis,

(4th Cir.

1993)). Generally, all five elements must be established before a new trial is permitted.

United States v. Moore,

(4th Cir. 2013); United States v. Fulcher,

(4th Cir. 2001).

Several months after his conviction, Moore received a letter from the FBI Forensics

Lab concerning the testimony of DNA expert Heather LaSalle. LaSalle testified at Moore’s

trial to the likelihood that the DNA obtained from the recovered vehicles came from Moore

and his co-conspirators. While LaSalle correctly testified that Moore was a contributor to,

or the source of, a DNA profile on swabs from inside the van ten times during the course

of trial, the letter identified eight slight deviations from the FBI’s recommended language.

On January 25, 2018, Moore filed a motion for a new trial pursuant to Rule 33 in

the district court. He claimed he was entitled to a new trial based on the newly discovered

evidence regarding the inaccuracies of LaSalle’s testimony. On March 22, 2018, the district

court denied Moore’s motion for a new trial, holding that the new evidence would not

“probably produce an acquittal” because the discrepancies between LaSalle’s language and

the language recommended by the FBI were so subtle. The district court also noted that the

FBI, although acknowledging the misstatements made by its expert, never “recanted its

position that the DNA test results in this case are many millions of times more likely if the

DNA recovered from the van is from [Moore].” The district court concluded that “no

reasonable juror would change his or her opinion of the evidence based on the barely

13 perceptible phrasing changes the FBI says Ms. LaSalle should have made in her

testimony.”

Given the overwhelming evidence of Moore’s guilt beyond the DNA evidence and

the fact that the FBI has never recanted its overall position regarding the DNA results, the

district court properly denied Moore’s motion for a new trial.

VII.

Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this Court and argument would not aid the decisional process.

AFFIRMED

14