United States v. Bailey, No. 19-5069 (10th Cir. 2020)
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A federal grand jury indicted Defendant Melvin Bailey, III, on four counts of Hobbs Act robbery, four counts of brandishing a firearm during and in relation to a crime of violence, and one count of Hobbs Act conspiracy. At trial, the jury acquitted Defendant on one count of Hobbs Act robbery and one count of brandishing a firearm. The jury convicted Defendant on the remaining seven counts, which stemmed from three robberies of a Walgreens in Tulsa, Oklahoma. Of these three robberies, the parties agreed Defendant personally committed two of them (those that occurred on April 28, 2015, and July 20, 2017). Based on these robberies, Defendant was convicted of two counts of Hobbs Act robbery and two counts of brandishing a firearm during a crime of violence. Those convictions were not at issue in this appeal. With respect to the third robbery on January 6, 2018, the parties agreed Defendant did not personally commit the offense. Rather, Defendant enlisted the help of a juvenile accomplice. For his part, Defendant instructed the juvenile on the execution of the robbery, provided him with a firearm and a mask, and acted as the getaway driver. The parties agreed Defendant’s participation made him an aider and abettor. In relation to this robbery, Defendant was convicted of Hobbs Act conspiracy, Hobbs Act robbery, and brandishing a firearm during a crime of violence.
Before the Tenth Circuit, Defendant argued the evidence presented at trial was insufficient to convict him of brandishing a firearm during the 2018 robbery. Specifically, Defendant contended this conviction had to be vacated because the evidence showed he did not personally commit the charged offense. The Tenth Circuit found this argument "unavailing," and affirmed conviction.
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