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United States v. Mitchell

United States District Court, N.D. Georgia, Atlanta Division

August 16, 2019

UNITED STATES OF AMERICA,
v.
TEVIN MITCHELL, TYVONNE WILEY, and TOREY STARLING, Defendants.

          ORDER

          Leigh Martin May United States District Judge.

         This case comes before the Court on the Magistrate Judge's Report and Recommendation ("R&R") [145], recommending that (1) Defendant Torey Starling's Motion to Dismiss Counts 1 and 2 of the Indictment be denied; (2) Starling's Motion to Sever Parties be deferred to this Court[1]; (3) Defendant Tyvonne Wiley's Motion to Dismiss, or in the Alternative, Motion to Sever be denied as to the Motion to Dismiss but deferred to this Court as to the alternative Motion to Sever[2]; (4) Wiley's Motion to Suppress Statements be deferred to this Court; (5) Wiley's Motion to Suppress be denied; (6) Defendant Tevin Mitchell's Motion for Bill of Particulars be granted in part and denied in part; (7) Tevin Mitchell's Motion to Suppress Search and Seizure be granted; (8) Tevin Mitchell's Motion to Suppress Statements be granted; and, (9) Starling's Motion to Dismiss Counts 7 and 9 of the Superseding Indictment be denied.

         Both Starling and Wiley timely filed Objections [147, 151]. After due consideration, the Court enters the following Order.

         I. LEGAL STANDARD

         Under 28 U.S.C. § 636(b)(1), the Court reviews the Magistrate's Report arid Recommendation for clear error if no objections are filed to the report. 28 U.S.C. § 636(b)(1). If a party files objections, however, the district court must determine de nova any part of the Magistrate Judge's disposition that is the subject of a proper objection. Id.; Fed. R. Crim. P. 59(b)(3). As Defendants filed objections, the Court reviews the Magistrate Judge's challenged recommendations on a de nova basis. 28 U.S.C. § 636(b)(1). The Court will consider each Defendant's objections in turn.

         II. DISCUSSION

         A. Defendant Starling's Objections

         Starling objects to the Magistrate Judge's recommendation with respect to his motion to dismiss Counts 7 and 9 of the Superseding Indictment. See Dkt. No. [14 7] ¶ 14. Counts 7 and 9 of the Superseding Indictment charge Starling under 18 U.S.C. § 924(c) with brandishing a firearm during and in relation to a crime of violence-specifically, armed robbery. Dkt. No. [69] ¶ 7, 9. Starling argues that both Counts 7 and 9 should be stricken or dismissed because the Supreme Court recently declared 18 U.S.C. § 924(c)(3)(B)-commonly referred to as the residual clause-unconstitutionally vague. Dkt. No. [147] ¶ 6; United States v. Davis, 588 U.S. (2019).

         However, Starling's objection is without merit because the Eleventh Circuit has already concluded that Hobbs Act robbery "is a crime of violence under § 924(c)'s elements clause"-that is, § 924(c)(3)(A). United States v. Nelson, 761 Fed.Appx. 917, 919 (11th Cir. 2019). Indeed, in Nelson, the Eleventh Circuit explicitly stated that the constitutionality of§ 924(c)'s residual clause does not effect Hobbs Act robbery convictions because such convictions qualify as crimes of violence under § 924(c)'s elements clause. Id. at 919 n.1. Because Starling's objection to his § 924(c) charges is foreclosed by the law of this circuit, it is OVERRULED.

         B. Defendant Wiley's Objections

         Wiley argues that: (1) the Magistrate Judge erred in finding that the affidavit Detective Grubbs offered in support of the Dallas County arrest warrant established probable cause; and, (2) the Magistrate Judge erred in refusing to suppress the November 1, 2016 search warrant that permitted officers to photograph Wiley's tattoos. Dkt. No. [151] at 2, 5.

         With respect to the Dallas County arrest warrant, the Court agrees with the Magistrate Judge's conclusion that the search warrant affidavit adequately supplied probable cause. See Dkt. No. [145] at 82-89. Probable cause for an arrest exists when law enforcement officials have "facts and circumstances" within their knowledge sufficient to warrant a reasonable belief that a suspect had committed or was committing a crime. Paez v. Mulvey, 915 F.3d 1276, 1285 (11th Cir. 2019). "Probable cause is not a high bar" and does not require "convincing proof that an offense was committed." Id. at 1286.

         Wiley argues that the Magistrate Judge erred in finding probable cause for the Dallas County arrest warrant for three reasons. First, Wiley contends that Defendant Grubbs' failure to indicate in his affidavit that he could not identify Wiley from the GameStop security video was a material omission. Dkt. No. [151] at 3. Detective Grubbs, however, explained that he could identify Wiley from the video based on the type of pants he was wearing (black with zippers), his height, and his weight. See Id. at 88. Thus, under the circumstances, the fact that Detective Grubbs could not see Wiley's face on the video was not a material omission. See, e.g., Ovington v. Atlanta Inv. Grp., Inc., 651 Fed.Appx. 951, 954 (11th Cir. 2016) (noting that while a photo did not show the face of the robber, it included specific details that could support an identification such as a tattoo, shoes, hat, clothing, posture, and the width of the suspect's shoulders).

         Second, Wiley avers that he was never seen and had never been in the Ford Fiesta, nor were there any items in the Ford Fiesta ever tied to him. Dkt. No. [151] at 3. But this argument belies the Magistrate Judge's findings that Wiley was found in the parking garage where the Ford Fiesta had been parked shortly after the robbery took place with Defendant Mitchell, to whom the car was registered. See Dkt. No. [145] at 5, 85; cf United States v. Gonzalez,70 F.3d 1236, 1238 (11-h Cir. 1995) (explaining that proximity to a person "whom officers have probable cause to believe is committing a crime" may be considered by the court as a factor). Additionally, the police discovered a rifle with a light-colored pillow case inside the Ford Fiesta; this discovery was consistent with the testimony of witnesses who had described the robber suspected to be Wiley as carrying a long rifle concealed in a light-colored pillow case. See Id. ...


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