United States Court of Appeals

for the Fifth Circuit

No. 19-20251

United States of America, 

Plaintiff—Appellee,

versus

Marc Anthony Hill; Bennie Charles Phillips, Jr.; 

Nelson Alexander Polk; John Edward Scott, 

Defendants—Appellants.

Appeal from the United States District Court

for the Southern District of Texas

No. 4:17-cr-00007-1

ON PETITION FOR REHEARING

Before Wiener, Dennis, and Duncan, Circuit Judges.

James L. Dennis, Circuit Judge:

The petitions for panel rehearing by Marc Hill and Bennie Charles 

Phillips, Jr. are GRANTED. The unopposed motion to recall the mandate 

by John Scott and Nelson Polk is GRANTED, and the mandate is 

RECALLED. Our prior panel opinion issued May 24, 2022, United States 

v. Hill, 35 F.4th 366 (5th Cir. 2022), is WITHDRAWN, and the following 

opinion is SUBSTITUTED therefor:

United States Court of Appeals

Fifth Circuit

FILED

March 22, 2023

Lyle W. Cayce

Clerk

Case: 19-20251 Document: 00516686016 Page: 1 Date Filed: 03/22/2023
No. 19-20251

2

Marc Hill, Bennie Charles Phillips, Jr., Nelson Polk, and John Scott 

(collectively “Defendants”), in concert with Trayvees Duncan-Bush,1

became involved in an armored car robbery at a bank automated teller 

machine (ATM) scheme masterminded by Redrick Batiste.2 The scheme 

involved staking out ATMs to identify when armored car drivers would 

replenish the cash inside and then robbing the armored car at the time of 

delivery by shooting and killing the driver. Batiste successfully executed this 

murder-robbery scheme at a Wells Fargo bank ATM in Houston, Texas in 

2016 with the assistance of Hill and Polk (the “Wells Fargo murderrobbery”), resulting in the death of an armored car driver. Batiste then 

planned a second murder-robbery at an Amegy Bank ATM in Houston (the 

“attempted Amegy Bank ATM murder-robbery”) with the help of all four 

Defendants. Acting on a tip, and after months of surveillance of Batiste,

following the Wells Fargo ATM murder-robbery, law enforcement 

converged on the Amegy Bank ATM the day of the planned Amegy Bank

ATM murder-robbery to turn the plot into a takedown. Batiste opened fire 

during the ambush but was shot and killed by the officers’ return fire. Law 

enforcement eventually arrested Hill, Polk, Scott, and Duncan-Bush at the 

scene and later arrested Phillips, who was not present for the planned Amegy 

Bank ATM murder-robbery. As the result of the Wells Fargo ATM robbery 

and the attempted robbery of the Amegy ATM, the surviving Defendants

were charged and prosecuted for aiding and abetting robbery, attempted 

robbery, and aiding and abetting the use of a firearm during a crime of 

violence causing death of a person. In one consolidated case, after a twoweek jury trial, the Defendants were each convicted on all counts. On appeal,

the Defendants each raise multiple issues challenging their convictions and 

sentences. For the following reasons, we VACATE the Defendants’ 

1 Duncan-Bush pleaded guilty and is not a defendant in this matter. 

2 Batiste was killed by police during the arrest. 

Case: 19-20251 Document: 00516686016 Page: 2 Date Filed: 03/22/2023
No. 19-20251

3

convictions as to Count Four and AFFIRM the judgment in all other 

respects.

I. Jurisdiction

This is a direct appeal from a final decision of the United States 

District Court for the Southern District of Texas, imposing criminal 

convictions and sentences, over which this court has jurisdiction under 28 

U.S.C. § 1291. Defendants timely filed their notices of appeal in compliance 

with Fed. R. App. P. 4(b). 

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 

Case: 19-20251 Document: 00516686016 Page: 3 Date Filed: 03/22/2023
No. 19-20251

4

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. 

Case: 19-20251 Document: 00516686016 Page: 4 Date Filed: 03/22/2023
No. 19-20251

5

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. 

Case: 19-20251 Document: 00516686016 Page: 5 Date Filed: 03/22/2023
No. 19-20251

6

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 

Case: 19-20251 Document: 00516686016 Page: 6 Date Filed: 03/22/2023
No. 19-20251

7

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. 

Case: 19-20251 Document: 00516686016 Page: 7 Date Filed: 03/22/2023
No. 19-20251

8

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 

Case: 19-20251 Document: 00516686016 Page: 8 Date Filed: 03/22/2023
No. 19-20251

9

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). 

Case: 19-20251 Document: 00516686016 Page: 9 Date Filed: 03/22/2023
No. 19-20251

10

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. 

Case: 19-20251 Document: 00516686016 Page: 10 Date Filed: 03/22/2023
No. 19-20251

11

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. 

Case: 19-20251 Document: 00516686016 Page: 11 Date Filed: 03/22/2023
No. 19-20251

12

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 

Case: 19-20251 Document: 00516686016 Page: 12 Date Filed: 03/22/2023
No. 19-20251

13

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 

Case: 19-20251 Document: 00516686016 Page: 13 Date Filed: 03/22/2023
No. 19-20251

14

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 

Case: 19-20251 Document: 00516686016 Page: 14 Date Filed: 03/22/2023
No. 19-20251

15

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 

Case: 19-20251 Document: 00516686016 Page: 15 Date Filed: 03/22/2023
No. 19-20251

16

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 

Case: 19-20251 Document: 00516686016 Page: 16 Date Filed: 03/22/2023
No. 19-20251

17

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 

Case: 19-20251 Document: 00516686016 Page: 17 Date Filed: 03/22/2023
No. 19-20251

18

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 

Case: 19-20251 Document: 00516686016 Page: 18 Date Filed: 03/22/2023
No. 19-20251

19

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). 

Case: 19-20251 Document: 00516686016 Page: 19 Date Filed: 03/22/2023
No. 19-20251

20

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, 

Case: 19-20251 Document: 00516686016 Page: 20 Date Filed: 03/22/2023
No. 19-20251

21

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. 

Case: 19-20251 Document: 00516686016 Page: 21 Date Filed: 03/22/2023
No. 19-20251

22

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 

Case: 19-20251 Document: 00516686016 Page: 22 Date Filed: 03/22/2023
No. 19-20251

23

“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 

Case: 19-20251 Document: 00516686016 Page: 23 Date Filed: 03/22/2023
No. 19-20251

24

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 

Case: 19-20251 Document: 00516686016 Page: 24 Date Filed: 03/22/2023
No. 19-20251

25

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 

Case: 19-20251 Document: 00516686016 Page: 25 Date Filed: 03/22/2023
No. 19-20251

26

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 case6to 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. 

Case: 19-20251 Document: 00516686016 Page: 26 Date Filed: 03/22/2023
No. 19-20251

27

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 

Case: 19-20251 Document: 00516686016 Page: 27 Date Filed: 03/22/2023
No. 19-20251

28

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 

Case: 19-20251 Document: 00516686016 Page: 28 Date Filed: 03/22/2023
No. 19-20251

29

. . . 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 

Case: 19-20251 Document: 00516686016 Page: 29 Date Filed: 03/22/2023
No. 19-20251

30

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 

Case: 19-20251 Document: 00516686016 Page: 30 Date Filed: 03/22/2023
No. 19-20251

31

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 

Case: 19-20251 Document: 00516686016 Page: 31 Date Filed: 03/22/2023
No. 19-20251

32

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,8to 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.” 

Case: 19-20251 Document: 00516686016 Page: 32 Date Filed: 03/22/2023
No. 19-20251

33

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. 

Case: 19-20251 Document: 00516686016 Page: 33 Date Filed: 03/22/2023
No. 19-20251

34

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. 

Case: 19-20251 Document: 00516686016 Page: 34 Date Filed: 03/22/2023
No. 19-20251

35

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 

Case: 19-20251 Document: 00516686016 Page: 35 Date Filed: 03/22/2023
No. 19-20251

36

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. 

Case: 19-20251 Document: 00516686016 Page: 36 Date Filed: 03/22/2023
No. 19-20251

37

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 

Case: 19-20251 Document: 00516686016 Page: 37 Date Filed: 03/22/2023
No. 19-20251

38

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 

Case: 19-20251 Document: 00516686016 Page: 38 Date Filed: 03/22/2023
No. 19-20251

39

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.

Case: 19-20251 Document: 00516686016 Page: 39 Date Filed: 03/22/2023
No. 19-20251

40

(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. 

Case: 19-20251 Document: 00516686016 Page: 40 Date Filed: 03/22/2023
No. 19-20251

41

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 

Case: 19-20251 Document: 00516686016 Page: 41 Date Filed: 03/22/2023
No. 19-20251

42

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. 

IV. Conclusion

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.

Case: 19-20251 Document: 00516686016 Page: 42 Date Filed: 03/22/2023