                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-2944
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                Julius Lamon Jones

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
               for the Eastern District of Missouri - Cape Girardeau
                                  ____________

                          Submitted: December 13, 2018
                             Filed: March 27, 2019
                                 ____________

Before SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.
                             ____________

SMITH, Chief Judge.

       A jury convicted Julius Lamon Jones of interference with commerce by threat
or violence (“Hobbs Act robbery”), in violation of 18 U.S.C. § 1951, and possession
of a firearm in furtherance of a crime of violence (COV), in violation of 18 U.S.C.
§ 924(c). On appeal, Jones argues that the district court1 erred in denying his motion
for mistrial based on a government witness’s response to his counsel’s questioning.
He also argues that the district court plainly erred in not granting a judgment of
acquittal on the ground that his Hobbs Act robbery conviction is not a COV as
defined in § 924(c). We affirm.

                                    I. Background
      “We recite the facts in the light most favorable to the jury’s verdict.” United
States v. Daniel, 887 F.3d 350, 353 (8th Cir. 2018) (quoting United States v.
Payne-Owens, 845 F.3d 868, 870 n.2 (8th Cir. 2017)).

                                 A. Underlying Facts
       Lee Sawyer managed Curt’s Grocery, a small convenience store in Kennett,
Missouri. Prior to July 1, 2015, Sawyer was familiar with three men who frequented
his store: Jones; Jones’s brother, Dontario Jones (“Dontario”); and Antonio Brown.
Sawyer knew Jones and Dontario’s family and had spoken to Jones and Dontario on
numerous occasions in the store. During a two-year period, Sawyer spoke to Brown
almost every day because of Brown’s prior relationship with a store employee.
Sawyer was familiar with all three men’s voices.

       On the night of July 1, 2015, just prior to closing, Sawyer went to lock the
store’s front door. He saw Brown approaching. Sawyer permitted Brown to enter the
store because he knew Brown well. Once inside the store, Brown spoke to Sawyer
and bought two items, including the last bottle of a certain beverage. Tracey Hon, a
cashier, handled Brown’s purchase. She also knew Brown because he frequented the
store.



      1
       The Honorable Ronnie L. White, United States District Judge for the Eastern
District of Missouri.

                                         -2-
       Sawyer noticed that Brown had purchased the last bottle on the shelf and began
walking to the storeroom to check inventory for restocking. Before reaching the
storeroom, Sawyer heard the front door violently open, as if someone had kicked it
in. Two men wearing facemasks and displaying handguns ran into the store. The first
man ran to the cashier’s area and threw Hon to the floor. The second man ran to an
area next to a coin-operated carnival machine. Without speaking, both men opened
fire on Sawyer. Four bullets struck Sawyer, causing him to fall to the floor. Sawyer
shouted that he would tell them the money’s location if they would quit shooting.
They stopped.

      The second man to enter the store approached Sawyer and demanded that
Sawyer empty his pockets. Sawyer complied. Sawyer carried a 9 mm Kel-Tec pistol.
The man took Sawyer’s pistol. Sawyer then told Hon where the moneybags were
located. Hon gave two moneybags to the first man, who had demanded the store’s
money. One of the moneybags was tan, and the other was green with “BancorpSouth”
printed on it. Hon also opened the cash register drawers, and the first man took the
cash. The cash registers and the two moneybags contained approximately $5,000.
Sawyer kept a shotgun underneath the front counter. The first man grabbed it and
headed for the door, but before leaving, he shot at Hon, barely missing her head. Both
men left the store. William Bundy, a store employee, witnessed the robbery and called
911. Bundy reported seeing a gray car leave the store’s parking lot after the robbery.

      Sawyer told investigating officers that he recognized the two men’s voices
when they shouted during the robbery. Sawyer believed they had come to the store
on other occasions. He identified the first man as Jones and the second man as his
brother Dontario.

       Kennett Police Officer Phillip Caldwell received a police dispatch alerting him
to a robbery and shooting at Curt’s Grocery. Officer Caldwell was informed that the
car involved in the robbery was a gray or silver Toyota, traveling south. Officer

                                         -3-
Caldwell identified the car and gave chase to the Arkansas border, where Arkansas
law enforcement continued the chase.

      After the car crossed the Arkansas state line, Mississippi County Deputy
Sheriff Dale Stracener attempted to block the road with his patrol car, but the car
evaded the obstruction and continued toward Blytheville, Arkansas. The car’s
occupants shot at Officer Stracener and other officers attempting to stop the vehicle.
Officer Stracener returned gunfire. As it entered Blytheville, the car left the roadway
and crashed in a muddy field. The three occupants fled on foot. Officer Stracener
gave chase, finding the vehicle’s driver under some bushes. The driver was identified
as Brown.

      Blytheville resident Steven Ellis (“Steven”) witnessed the chase. He later saw
a man in a neighborhood running down the street apparently talking on a cell phone.
Steven did not recognize the man as a neighborhood resident. He watched as a yellow
Cadillac Escalade picked up the man and drove away. Steven reported his
observations to the police department, including the Cadillac Escalade’s license plate
number. He told the police that the Cadillac Escalade was traveling south toward
Osceola, Arkansas.

        Osceola Police Department Officer Chris Ellis heard police dispatch relay
Steven’s information, including the car’s license plate number. Officer Ellis was
familiar with the car and the license plate number. Officer Ellis and another officer
intercepted the Cadillac Escalade as it entered Osceola. After stopping the vehicle,
the officers identified the female driver as Reshawn Jones and the passenger as Jones,
her husband. After Jones got out of the vehicle, Officer Ellis noticed that Jones’s
pants were covered with dirt and mud. Without prompting, Jones stated, “I haven’t
done anything. I’m just coming from Kennett gambling.” Jury Tr. Proceedings, Vol.
I, at 232, United States v. Jones, No. 1:16-cr-00035 (E.D. Mo. Mar. 13, 2017), ECF



                                         -4-
No. 78. After detaining Jones, Officer Ellis drove to Jones’s home in Osceola. Upon
his arrival, he found Brown’s Chevrolet Tahoe.

      The officers who searched the Cadillac Escalade recovered a green
BancorpSouth moneybag and a tan BancorpSouth moneybag. Sawyer later identified
these moneybags as belonging to Curt’s Grocery. The green moneybag contained
$1,783 in cash, and the tan moneybag contained $350 in cash.2

        Arkansas State Police Officer Scott Pillow searched the crashed Toyota Camry
at the scene. He found several firearms in and around the vehicle, including the pistol
stolen from Sawyer and the store’s shotgun. Officer Pillow also found three ski masks
in the car. One of those masks had DNA matching Jones’s as a major contributor.

                              B. Procedural History
      Jones was charged with Hobbs Act robbery, aided and abetted by Brown and
Dontario (“Count I”). He was also charged with possession of a firearm in furtherance
of a COV, aided and abetted by Brown and Dontario (“Count II”).

      A few days prior to trial, the government sent Jones’s attorney an e-mail, which
provided in relevant part:

      By the way, Lee [Sawyer] and Tracey [Hon] both knew Brown very
      well. Sawyer knew both Jones brothers very well and will testify that he
      recognized their voices that night. He told Kennett police officer

      2
        Jones moved to suppress “all items seized from [his] Cadillac Escalade, all
testimony regarding [his] seizure and arrest from the Escalade, and any statements
[he] allegedly made at the scene of his arrest.” United States v. Jones, No. 1:16-cr-
00035, 2016 WL 7477613, at *1 (E.D. Mo. Dec. 8, 2016) (alterations in original)
(citation omitted), R. & R. adopted, No. 1:16-cr-00035, 2016 WL 7626594 (E.D. Mo.
Dec. 28, 2016). Upon the magistrate judge’s report and recommendation, the district
court denied the motion to suppress. That ruling is not at issue in this appeal.

                                         -5-
      Waynick, as he was being loaded in the ambulance that, “Those were the
      same two . . . that robbed me the last time.” Turns out that Lee [Sawyer]
      was robbed about a year earlier and that he recognized the voices then
      as the two Jones brothers. No arrests out of that case, even though it was
      reported. I don’t intend to refer to the prior robbery and I’ve instructed
      Lee [Sawyer] not to answer any question with an answer about the prior
      robbery unless you ask it. I intend to call Officer Waynick and ask him
      a leading question, “Did Lee Sawyer tell you that he recognized the
      voices of the two men that robbed him?” That question, which Waynick
      will answer yes, will not disclose the prior robbery. If you want to ask
      any followup, I’ll leave that to you. Just wanted to make sure you knew
      how deep the water was.

      My entire case will be based on the following:

      1)      Sawyer’s voice identification of both Jones brothers, including
              which one did what.
      2)      Hon’s partial facial ID of Julius [Jones].
      3)      Julius [Jones’s] DNA on the ski mask in the Camry.
      4)      The 911 caller, Stephen Ellis. (I’ll send you the radio log with his
              report; we finally got all of that)[.]
      5)      Julius Jones’[s] muddy clothing when arrested.
      6)      The green money bag found in the Escalade will be identified by
              Lee Sawyer as coming from his store about an hour earlier.

      Just don’t want any surprises.

      Keith

Appellee’s Add. at A-1 (emphases added).

     During trial, Sawyer testified for the government. Jones’s counsel cross-
examined Sawyer, apparently intending to show that Sawyer should not be believed
when testifying that he recognized the voices of the Jones brothers. The following
exchange occurred while Jones’s attorney cross-examined Sawyer:


                                           -6-
      Q [by Jacob Zimmerman, Jones’s counsel] I want to go back to you
      recognizing the voices of these individuals. How many times have one
      of your customers come in there and yelled loud at you, calling you a
      “motherf****r” or things like that?

      A      Not very many.

      Q      Not very many. Had Mr. Jones ever done that to you?

      A      No, sir.

      Q      Had his brother ever done that to you?

      A      No, sir.

      Q      But that’s what these robbers were doing that night.

      A      Yes, sir.

      Q     Okay. So they weren't coming in using their normal voices. They
      were yelling.

      A      Yes, sir.

      Q      And you believe, based on them yelling, you’re telling us that you
      still were able to identify their voices?

      A      Yes, sir.

Jury Tr. Proceedings, Vol. I, at 131.

      After questioning Sawyer about how he was able to recognize the assailants’
voices, Jones’s counsel then questioned Sawyer about his conversation with officers
following the robbery. Sawyer confirmed that officers asked him questions about the


                                        -7-
shooting to obtain information to apprehend the individuals and that Sawyer told the
officers how the incident occurred. Thereafter, the following exchange occurred:

      Q     But the first officers you spoke with, you didn’t tell them that you
      recognized the voice of the two assailants, correct?

      A     No, sir.

      Q     That would have been very important, though, right?

      A     Yes, sir.

      Q     I mean you just testified that you knew that it was important for
      them to try to apprehend these assailants, right?

      A     Yes, sir.

      Q     I mean guys that just had shot you, right? Correct?

      A     I did—I did tell him that it was the same two people that robbed
      me the first time when I was on the parking lot, and I had done stated to
      the police that I believe they was the ones who robbed me the first time.

      Q     But these individuals—But you didn’t tell them you recognized
      any voices, correct?

      A     I didn’t say I recognized their voice. I just plainly told them it was
      the same two guys that robbed me the first time.

Id. at 133–34 (emphases added).

       Jones’s counsel immediately requested a sidebar and moved the court for a
mistrial based on Sawyer’s answer, which identified Jones as someone who had
previously robbed his store. The district court denied the motion, concluding, “I do


                                          -8-
think that opened the door and he just responded. I’m going to deny your request for
a mistrial.” Id. at 135.

       Both at the close of the government’s case and at the close of all evidence,
Jones moved for judgment of acquittal, which the district court denied. The jury
found Jones guilty of both crimes. The probation office prepared a presentence
investigation report (PSR), which calculated Jones’s total offense level as 34 and his
criminal history category as III, resulting in a Guidelines range of 188 to 235 months’
imprisonment for Count I and 120 months’ imprisonment for Count II. The district
court sentenced Jones to a within-Guidelines sentence of 188 months’ imprisonment
on Count I and 120 months’ imprisonment on Count II, to be served consecutively.
The total sentence was 308 months’ imprisonment.

                                   II. Discussion
      On appeal, Jones argues that the district court erred in denying his motion for
a mistrial and in denying his motions for judgment of acquittal.

                                A. Motion for Mistrial
       Jones argues that the district court erred in denying his motion for a mistrial
during Sawyer’s testimony. On cross-examination, Sawyer testified that Jones had
robbed him on a prior occasion. Jones asserts that Sawyer’s answer was
non-responsive to his counsel’s cross-examination questions that focused on whether
Sawyer told the initial investigating officers that he recognized his assailants’ voices.
Jones argues that at no time did his counsel ever ask Sawyer about other facts that
would him enable to identify the robbers aside from their voices. He insists his trial
counsel never “opened the door” to permit testimony regarding the alleged prior
robbery. Appellant’s Br. at 11. He contends that the court erred by not giving a
limiting instruction to limit the unfair prejudice caused by Sawyer’s testimony.




                                          -9-
       “We review a district court’s denial of a motion for a mistrial because of a
witness’s improper comment for abuse of discretion.” United States v.
Sanchez-Garcia, 685 F.3d 745, 752 (8th Cir. 2012). Because Sawyer never objected
to the district court’s lack of a curative instruction, “we review any decision by the
district court to omit a curative instruction for plain error.” United States v. LeGrand,
468 F.3d 1077, 1081 (8th Cir. 2006).

      We have set forth several factors to consider in determining whether a
witness’s improper comment warrants a mistrial:

      (1) whether the remark was unsolicited; (2) whether the government’s
      line of questioning was reasonable; (3) whether a limiting instruction
      was immediate, clear, and forceful; (4) whether any bad faith was
      evidenced by the government; and (5) whether the remark was only a
      small part of the evidence against the defendant.

Sanchez-Garcia, 685 F.3d at 752 (quoting United States v. Branch, 591 F.3d 602, 608
(8th Cir. 2009)).

      In the typical case, a defendant moves for a mistrial based on allegedly
improper testimony elicited by the government. See, e.g., id. (“When asked by the
prosecutor if he had any information about [the defendant’s] involvement with
[another] in the distribution of methamphetamine, [the government witness]
responded . . . .”); Branch, 591 F.3d at 607 (“The outburst in question occurred
during [the government witness’s] testimony. The prosecution asked [the witness]
about her transfer of $25,000 to a man that she knew as Josh Edwards . . . .”). By
contrast, Jones moved for a mistrial based on testimony elicited by his own counsel.

       Applying the aforementioned factors to this unique case, we hold that the
district court did not abuse its discretion in denying Jones’s motion for a mistrial or
plainly err in omitting a curative instruction. First, the government did not solicit the

                                          -10-
remark from Sawyer. Instead, Sawyer spoke in response to a series of questions by
defense counsel. Viewed in their totality, these questions, outlined above,
demonstrate that defense counsel’s line of questioning concerned whether Sawyer,
on July 1, 2015, told law enforcement anything about the robbers’ identities,
including recognition of their voices. This line of questioning was not limited to
Sawyer’s ability to recognize Jones’s voice. To be sure, Sawyer could have simply
answered the final question, “No.” Instead, Sawyer used the answer to clarify what
he actually had told the officers. He said, “I didn’t say I recognized their voice. I just
plainly told them it was the same two guys that robbed me the first time.” Jury Tr.
Proceedings, Vol. I, at 134. Jones’s counsel requested and received a sidebar seeking
a mistrial but did not request a curative instruction. Sawyer’s answer was not so
unresponsive as to have warranted a mistrial.

       The second factor concerns the reasonableness of the government’s line of
questioning. Here, however, defense counsel asked the questions that produced the
allegedly improper comment. During its direct examination, the government asked
about Sawyer’s prior dealings with the Jones brothers, and Sawyer testified that he
had spoken with Jones “dozens” of times, id. at 123, and Dontario “hundreds of
times.” Id. at 124. Sawyer testified in response to leading questions that he recognized
both of the robbers’ voices and that he told “the officers that night that [he]
recognized the voices of the two men.” Id. at 126. The government’s unobjected-to
line of questioning avoided eliciting a response from Sawyer concerning the prior
robbery. These questions were reasonable.

      The third factor concerns whether the district court gave an “immediate, clear,
and forceful” curative instruction following an improper comment. Sanchez-Garcia,
685 F.3d at 752. But Jones never requested a curative instruction following Sawyer’s
testimony. On these facts, not issuing the instruction sua sponte was not error, plain
or otherwise. The district court correctly found that Sawyer’s answers were



                                          -11-
responsive to Jones’s counsel’s line of questioning and that Jones’s counsel “opened
the door” to the prior robbery statement by Sawyer.

        Fourth, there was no bad faith on the government’s part resulting in Sawyer’s
testimony about the prior robbery. The government alerted Jones in advance of its use
of Sawyer’s testimony and kept its direct examination in line with its stated use and
avoided any mention of the prior robbery. The government suggested that Jones’s
counsel might want to limit his questions when inquiring about how Sawyer reported
the identity of the robbers to the investigating officers. The government’s conduct
here is far removed from bad faith. See, e.g., United States v. Rounsavall, 115 F.3d
561, 565 (8th Cir. 1997) (holding that witness’s reference to defendant’s prior
incarceration did not justify a mistrial, where witness made improper statement after
six days of trial testimony that included “overwhelming” evidence of defendant’s
guilt, statement occurred during cross-examination by defense counsel, prosecution
never discussed remark, witness had no motive to hurt defendant, jury received
immediate and appropriate instructions to disregard improper statement, and court
offered to give similar jury instructions at close of prosecution’s evidence and at end
of trial, but defense counsel declined).

       Finally, Sawyer’s “remark was only a small part of the evidence against the
defendant.” Sanchez-Garcia, 685 F.3d at 752 (quoting Branch, 591 F.3d at 608). The
evidence against Jones is overwhelming. Sawyer identified Jones’s voice as
belonging to one of the two men who shot him and the man who accosted his cashier
and took the money from her. Jones’s DNA was on a ski mask left in the getaway car
after it crashed in Blytheville. Jones was arrested a short time after the Blytheville
crash in the second getaway car in Osceola, Arkansas, and two money bags taken
from Curt’s Grocery were found in the second getaway car less than an hour later.




                                         -12-
                         B. Motion for Judgment of Acquittal
       Jones also argues that the district court erred in denying his motions for
judgment of acquittal on the ground that his Hobbs Act robbery falls under 18 U.S.C.
§ 924(c)(3)(B) instead of § 924(c)(3)(A). Jones contends that § 924(c)(3)(B) is
unconstitutionally vague, and as a result, his conviction cannot constitute a COV. But
Jones admits that he did not make this argument to the district court in moving for
judgment of acquittal. He thus concedes that our review is for plain error. See United
States v. Samuels, 874 F.3d 1032, 1036 (8th Cir. 2017) (“‘When a defendant raises
specific grounds in a Rule 29 motion, grounds that are not specifically raised are
waived on appeal.’ At most, we review such forfeited issues for plain error.” (first
quoting United States v. Chong Lam, 677 F.3d 190, 200 (4th Cir. 2012), then citing
United States v. Calhoun, 721 F.3d 596, 600 (8th Cir. 2013))). “Plain error means an
error that is clear under current law, caused prejudice, and seriously affected the
fairness, integrity, or public reputation of judicial proceedings.” United States v.
Borders, 829 F.3d 558, 564 (8th Cir. 2016).

       Section 924(c) prohibits a person from using or carrying a firearm during and
in relation to a COV or possessing a firearm in furtherance of a COV. The statute
defines COV as a felony offense that

      (A) has as an element the use, attempted use, or threatened use of
      physical force against the person or property of another, or

      (B) that by its nature, involves a substantial risk that physical force
      against the person or property of another may be used in the course of
      committing the offense.

18 U.S.C. § 924(c)(3).

      Jones’s “indictment charged him with committing Hobbs Act robbery, 18
U.S.C. § 1951(a), as the [COV].” Diaz v. United States, 863 F.3d 781, 783 (8th Cir.

                                        -13-
2017); see also Indictment at 1, United States v. Jones, No. 1:16-cr-00035 (E.D. Mo.
Mar. 17, 2016), ECF No. 1. Jones “contends that Hobbs Act robbery, see 18 U.S.C.
§ 1951(a)(1), (b)(1), does not qualify as a COV predicate as defined in
§ 924(c)(1)(A).” United States v. Bowens, 907 F.3d 347, 353 (5th Cir. 2018), cert.
denied, No. 18-7612, 2019 WL 358681 (U.S. Mar. 4, 2019). According to Jones, a
defendant could violate the Hobbs Act by “conspiracy” or by creating a “fear of
injury”; as a result, a violation of the Act could “be done without the use of force or
threat of force” as provided in § 924(c)(3)(A). Appellant’s Br. at 15–16.

       “The Hobbs Act defines robbery to include ‘the unlawful taking or obtaining
of personal property from the person or in the presence of another, against his will,
by means of actual or threatened force, or violence, or fear of injury . . . to his person
or property.’” Diaz, 863 F.3d at 783 (ellipsis in original) (quoting 18 U.S.C.
§ 1951(b)). “Like other circuits, we have expressly held that Hobbs Act robbery has
as an element the use, attempted use, or threatened use of physical force against the
person of another, the operative term in § 924(c)(3)(A).” Id. (emphasis added)
(cleaned up).

      In Sessions v. Dimaya, the Supreme Court held that language identical to that
found in § 924(c)(3)(B) was unconstitutionally vague. 138 S. Ct. 1204, 1223 (2018).
But our sister circuits have held that Dimaya has no impact on circuit precedent
holding that Hobbs Act robbery is a COV predicate under § 924(c)(3)(A).3 We agree

      3
       See, e.g., United States v. Allen, 750 F. App’x 490, 492 (7th Cir. 2019)
(recognizing that “a Hobbs Act robbery is a ‘crime of violence’ under the elements
clause found in § 924(c)(3)(A)” and that “[a]t most Dimaya bears on the
constitutionality of the residual clause, 18 U.S.C. § 924(c)(3)(B)”); Bowens, 907 F.3d
at 353 (“As the government correctly notes, binding circuit precedent forecloses
Bowens’s claim that Hobbs Act robbery is not a COV predicate under 18 U.S.C.
§ 924(c)(3)(A).”); United States v. Barrett, 903 F.3d 166, 169 (2d Cir. 2018) (“We
here conclude that Barrett’s challenge to his . . . convictions—predicated on
substantive Hobbs Act robberies—is defeated by United States v. Hill, 890 F.3d 51

                                          -14-
and accordingly hold that the district court did not plainly err in denying Jones’s
motions for judgment of acquittal on Count II.

                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                     ______________________________




(2d Cir. 2018), which, post-Dimaya, holds substantive Hobbs Act robbery to be a
categorical crime of violence within the definition of § 924(c)(3)(A).”).


                                       -15-
