                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0170n.06

                                           No. 19-5495

                          UNITED STATES COURT OF APPEALS                                FILED
                               FOR THE SIXTH CIRCUIT                              Mar 25, 2020
                                                                              DEBORAH S. HUNT, Clerk
 UNITED STATES OF AMERICA,                                )
                                                          )
        Plaintiff-Appellee,                               )
                                                                ON APPEAL FROM THE
                                                          )
                                                                UNITED STATES DISTRICT
 v.                                                       )
                                                                COURT FOR THE WESTERN
                                                          )
                                                                DISTRICT OF TENNESSEE
 JESSE ROBERT COOP,                                       )
                                                          )
        Defendant-Appellant                               )


BEFORE: GRIFFIN, WHITE, and NALBANDIAN, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. A jury convicted defendant Jesse Robert Coop of

one count of aiding and abetting Hobbs Act robbery (Count 1), one count of aiding and abetting

the brandishing of a firearm during and in relation to a crime of violence (Count 2), and five counts

of conspiracy to possess with intent to distribute oxycodone, oxycontin, morphine, hydrocodone,

and nucynta (Counts 3 through 7, respectively). Coop appeals, and we AFFIRM his convictions

on Count 1 and Counts 3 through 7, but REVERSE his conviction on Count 2.

                                          I. Background

                                     A. Factual Background

       During the early morning hours of April 27, 2018, Coop and Keith Harrington, Coop’s

roommate, spent several hours—from approximately 1:40 a.m. to 5:40 a.m.—inspecting Coop’s

truck, walking back and forth between their Memphis apartment and the truck, and making at least

two trips away from the apartment before returning around 5:40 a.m. Ten minutes later, Coop,

walking quickly, walked a motorcycle from the apartment to the back of the truck. Shortly

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No. 19-5495, United States v. Coop


thereafter, Coop and Harrington loaded the motorcycle into the truck bed and laid it flat. Both

men then climbed in the truck cab and Coop drove the truck away from the apartment complex.

       Coop and Harrington, aboard the motorcycle, arrived at a CVS store on Winchester Road

in Memphis sometime between 6:00 a.m. and 6:10 a.m. Although there were numerous parking

spots in front of the store, Coop parked the motorcycle in the back, near the pharmacy. Coop and

Harrington walked around to the front of the store and entered about 6:10 a.m. Djuan Hollowell,

the assistant store manager, and Ronna Thomas, the cashier, were working in the front of the store.

Both employees greeted Coop and Harrington, but neither responded. Hollowell thought it unusual

that Coop and Harrington walked so closely to each other. They walked to the back of the store,

separating to walk in the same direction on opposite sides of an aisle. At the end of the aisle, Coop

turned and walked down the other side of the aisle. As Coop walked, he paused to look down

other aisles he passed, ultimately returning to the front of the store and leaving without making a

purchase. After exiting the store, Coop headed to the rear of the building where he had parked the

motorcycle. After Coop left the CVS, Harrington, who had similarly walked the store looking

down side aisles, stopped, pulled a cap down over his face and walked toward the pharmacy in the

rear of the CVS.

       Dr. Isiah McCray, CVS’s pharmacist, was bending over, pulling “deletions”—

prescriptions that customers failed to pick up—when he heard a sound. R. 99, PID 587. He stood

up, turned around, and saw Harrington approaching him with a revolver. McCray screamed and

Harrington told him to “[c]alm down” and that this was “going to go smooth.” Id. Harrington

ordered McCray to go to the pharmacy’s safe and told him that he was looking for oxycodone,

hydrocodone and suboxone. Harrington grabbed a nearby trash can with a plastic trash liner for




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No. 19-5495, United States v. Coop


McCray to place the drugs in. McCray then filled the plastic bag liner with drugs.1 Several minutes

later, Harrington told McCray that he had enough drugs and ran up the aisle with the bag of

medications. As soon as Harrington left the pharmacy area, McCray called 911 and heard a

motorcycle start up in the rear of the pharmacy.

       One of the pill bottles McCray gave Harrington was a Pharma tracker that activates as soon

as it is removed from the store, and records and transmits GPS, cell phone, and radio frequency

signals to law enforcement. The data from these recordings allow law enforcement officials to

recreate the device’s movement. The government introduced this data as Exhibit 5. The device

registered Coop and Harrington’s departure from the CVS and reflected that they traveled from

the store to a neighborhood on Kirby Road. After a short period where the tracker is stationary,

the tracker moved from that neighborhood back to Coop and Harrington’s apartment.2 The

apartment complex’s surveillance footage shows that Coop and Harrington quickly drove back

into the complex, with the motorcycle lying flat in the truck’s bed, and parked next to their

apartment. They then unloaded the motorcycle from the truck, and Coop pushed the motorcycle

into the apartment while Harrington ran into the apartment carrying the trash bag. Once the

motorcycle was inside the apartment, Coop exited the apartment, jumped back in the truck, and

quickly parked it in an available space, running over a curb in the process. After parking, Coop



1
 McCray testified that the quantity of drugs he put in the bag, approximately 7500 pills, was not
consistent with personal use.
2
  The government’s theory was that Coop and Harrington had driven the truck from their apartment
complex to a neighborhood on Kirby Road only a short distance from the CVS, where they parked
the truck, unloaded the motorcycle, and rode it to the store. The government argued that Coop and
Harrington switched vehicles to evade capture after the robbery, as Dr. McCray reported to police
that he heard a motorcycle start up—not a truck—and law enforcement was looking for the wrong
vehicle. The government argued that Coop and Harrington’s movements after the robbery—first
to Kirby Road and then back to their apartment complex—where they arrived in Coop’s truck
(with the motorcycle laid flat) support its theory.
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No. 19-5495, United States v. Coop


removed most of the clothing he wore earlier, emerging from the truck shirtless before running

back into the apartment.

          Officers following the tracking device’s signal arrived at the apartment complex

approximately three minutes after Coop ran back inside the apartment. Officers eventually

arrested both men when they exited their apartment several hours later, and obtained a search

warrant to search the apartment and Coop’s truck. Officer David Galloway of the Memphis Police

Department testified that the motorcycle was found in the living room of the apartment alongside

the trash bag full of pills. In Coop’s truck, officers found a brown jacket and a baseball cap that

Coop wore during the robbery.

                                     B. Procedural Background
          Coop and Harrington were indicted on eight counts. Harrington entered a guilty plea, but

Coop pleaded not guilty and proceeded to trial. Coop’s attorney stated during opening statements

that Coop was unaware that Harrington had robbed the CVS until Harrington came out of the CVS

holding the bag of pills and a gun, at which point Coop feared for his own life and had no choice

but to continue driving Harrington around. See, e.g., R. 99, PID 582 (“And then [Coop] sees to

his utter disbelief Mr. Harrington coming out there with a gun and a bag of pills and he says, ‘Let’s

F’ing go.’ And Mr. Coop sees the gun, and he realizes he’s caught . . . ‘If I say no, I’m going to

get shot.’”). The government’s proposed jury instructions included language from the Sixth

Circuit Pattern Jury Instruction on a justification defense, as well as optional bracketed language

to be used for an aiding-and-abetting-using-or-carrying-a-firearm charge when the defendant

learns of the firearm during the offense.3 At the close of the government’s case-in-chief, Coop



3
    This language is as follows:
          It is sufficient if the defendant gained the knowledge in the midst of the underlying
          crime, as long as the defendant chose to continue to participate in the crime and had
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No. 19-5495, United States v. Coop


moved for a judgment of acquittal, which the district court denied. The defense then rested without

presenting any evidence, and the district court heard argument on final jury instructions. The

United States and Coop agreed that there was no evidence presented at trial warranting the

justification instruction. Although the United States originally included the optional bracketed

language in the aiding-and-abetting-use-of-a-firearm instruction, it argued that there was no

evidence that Coop learned of the firearm when Harrington came out of the CVS. Coop requested

that the bracketed language remain in the final instruction. The district court concluded that the

bracketed language was meant for those situations where “there’s some question as to whether the

Defendant was sort of in it from the beginning or joined along the way or never joined.” R. 100,

PID 714. “Put[ting] aside [Coop’s] opening statement and just focus[ing] on the proof itself,

there’s no proof offered at this point that Mr. Coop wasn’t just in from the beginning, if they find

that he was in at all.” Id. The district court removed the bracketed language and gave the pattern

instruction.4




          a realistic opportunity to withdraw. You may, but need not, infer that the defendant
          had sufficient foreknowledge if you find that the defendant chose to continue his
          participation in the crime after the defendant knew an accomplice was using or
          carrying a firearm.
SCPJI 12.04(2)(C). The Use Note provides that these sentences should “be used only if the
evidence suggests that the defendant gained knowledge of the firearm in the midst of the
underlying crime.”
4
    That instruction provides that:
          The Defendant intended to aid and abet the crime of using, carrying or brandishing
          a firearm during and in relation to a crime of violence if he had advance knowledge
          that an accomplice would use, carry or brandish a firearm during the commission
          of a crime of violence. “Advance knowledge” means knowledge at a time that
          Defendant can attempt to alter the plan or withdraw from the enterprise.
          Knowledge of the firearm may, but does not have to, exist before the underlying
          crime is begun.
SCPJI 12.04(2)(C); R. 64, PID 247.
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No. 19-5495, United States v. Coop


       The district court then charged the jury and it began deliberating. Sometime later, the jury

sent a note to the court asking about two of the counts. As relevant here, the jury asked, “[h]ow

can the Defendant be guilty of Count 2 if he never touched or saw the gun? Does the Government

have to prove he knew a gun was involved?” R.100, PID 794. The district court simply referred

the jury back to the jury instructions it had previously given, as reflected below in footnote 6.

Thereafter, the jury convicted Coop of seven of the eight counts, acquitting him on Count 8, which

charged him with conspiracy to possess with intent to distribute Concerta. Coop was sentenced to

concurrent terms of 78 months’ imprisonment on Count 1 and Counts 3 through 7, and to a

consecutive term of 84 months’ imprisonment on Count 2 (the statutory minimum).

       Coop argues on appeal that the evidence was insufficient to support his convictions, that

the district court erred by not giving the bracketed instruction from SCPJI 12.04(2)(C), that the

district court compounded its error by not adequately responding to the jury’s question, and that

aiding and abetting Hobbs Act robbery is not a crime of violence.

                                         II. Discussion

                                  A. Sufficiency of the Evidence

       Coop contends that the evidence was insufficient to support his convictions. We review

de novo a challenge to the sufficiency of the evidence. United States v. Howard, 621 F.3d 433,

459 (6th Cir. 2010). We ask “whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). In making this

determination, “we refrain from independently judging the credibility of witnesses or weight of

the evidence.” United States v. Welch, 97 F.3d 142, 148 (6th Cir. 1996); United States v. Caseer,




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No. 19-5495, United States v. Coop


399 F.3d 828, 840 (6th Cir. 2005) (“All conflicts in testimony are resolved in the government’s

favor, and every reasonable inference is drawn in favor of the government.”).

                               1. Aiding and abetting Hobbs Act robbery

          Count 1 of the indictment charged Coop with aiding and abetting Hobbs Act robbery, in

violation of 18 U.S.C. §§ 2, 1951. A person commits a violation of 18 U.S.C. § 1951(a) if he:

          [I]n any way or degree obstructs, delays, or affects commerce or the movement of
          any article or commodity in commerce, by robbery or extortion or attempts or
          conspires so to do, or commits or threatens physical violence to any person or
          property in furtherance of a plan or purpose to do anything in violation of this
          section.

A defendant may be held liable for aiding and abetting Hobbs Act robbery pursuant to 18 U.S.C.

§ 25 if the government demonstrates that he “(1) takes an affirmative act in furtherance of that

offense, (2) with the intent of facilitating the offense’s commission.” Rosemond v. United States,

572 U.S. 65, 71 (2014). “In proscribing aiding and abetting under 18 U.S.C. § 2, Congress used

language that ‘comprehends all assistance rendered by words, acts, encouragement, support, or

presence,’ even if that aid relates to only one (or some) of a crime’s phases or elements.” United

States v. Tibbs, 685 F. App’x 456, 465-66 (6th Cir. 2017) (internal citation and footnote omitted).

“Active participation in the planning phase of an armed robbery constitutes intent to bring about

the offense.” United States v. Gooch, 850 F.3d 285, 288 (6th Cir.), cert. denied, 137 S.Ct. 2230

(2017).

          A reasonable jury could find that Coop aided and abetted Harrington’s robbery of the CVS.

The government introduced extensive video evidence that Coop and Harrington spent several


5
    18 U.S.C. § 2 provides:
          (a) Whoever commits an offense against the United States or aids, abets, counsels,
              commands, induces or procures its commission, is punishable as a principal.
          (b) Whoever willfully causes an act to be done which if directly performed by him or
              another would be an offense against the United States, is punishable as a principal.
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No. 19-5495, United States v. Coop


hours before they left their apartment preparing the truck for the robbery. Shortly before departing

the apartment complex, Coop assisted Harrington with moving the motorcycle from the apartment

into the back of the truck and concealing it by laying it on its side. The apartment’s video

surveillance shows that Coop was always driving the truck—both before and after the robbery was

committed. In addition, the CVS surveillance footage shows Coop and Harrington entering the

store and walking down the main aisle, where Coop peers down each separate aisle before walking

out of the store and around the side toward the back where the motorcycle was parked. From this

evidence, a jury could reasonably conclude that Coop was assisting Harrington by “casing” the

store to ensure that it was not crowded. Finally, after the robbery, the tracking device data shows

that Coop and Harrington fled the scene, riding to a nearby neighborhood. After a short period—

enough time to load the motorcycle on the truck—Coop drove Harrington back to their apartment.

       The apartment’s surveillance footage also supports the conclusion that Coop was aware of

the robbery and attempting to conceal what had just transpired. Coop drove back into the

apartment complex at a high rate of speed and the two quickly exited the truck, with Coop moving

the motorcycle into the apartment and Harrington running into the apartment carrying the trash

bag of drugs. Coop then ran out of the apartment and parked in the closest space he could, running

over a curb in the process. He again exited the truck, removing the clothing that he had worn

earlier and running bare-chested into the apartment. From this evidence, a reasonable jury could

conclude that Coop was not merely an innocent bystander but actively participated in the planning,

execution, and cover-up phases of the robbery.

                            2. Aiding and abetting – 18 U.S.C. § 924(c)

       Next, Coop challenges the evidence to support that he aided and abetted the brandishing of

a firearm during Harrington’s robbery. Where a defendant is charged with aiding and abetting a



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No. 19-5495, United States v. Coop


§ 924(c) offense, “the [g]overnment makes its case by proving that the defendant actively

participated in the underlying drug trafficking or violent crime with advance knowledge that a

confederate would use or carry a gun during the crime’s commission.” Rosemond, 572 U.S. at 67.

“[I]f a defendant continues to participate in a crime after a gun was displayed or used by a

confederate, the jury can permissibly infer from his failure to object or withdraw that he had such

knowledge.” Id. at 78 n.9.

       We reverse Coop’s conviction on this count because the evidence is insufficient to support

a finding by a reasonable juror that Coop aided and abetted Harrington’s brandishing of the

firearm. The government argues that the evidence was sufficient to support Coop’s conviction on

this count because Coop’s assistance—both before the robbery and after—was sufficient to enable

a reasonable jury to conclude that Coop had advance knowledge that Harrington would use a gun

during the robbery. We disagree.

       The cases cited by the government are inapposite. The government relies on United States

v. Harris, 676 F. App’x 558 (6th Cir. 2017) (per curiam), where we concluded that the government

presented sufficient evidence that Harris had advance knowledge that his co-defendant would use

a firearm during a robbery. Id. at 560. There, however, the government introduced the testimony

of Harris’ accomplice that he told Harris that they were going to “hit a lick on some phones,”

meaning take by armed robbery. Id. In addition, the government introduced video surveillance

from the Radio Shack that showed that Harris was not surprised when his accomplice—standing

right next to him—pulled a firearm during the robbery, and testimony from a Radio Shack

employee that the gun was visible. Id. at 561. We concluded that this was sufficient evidence

from which a reasonable jury could have concluded that Harris had advanced knowledge of his

accomplice’s possession of the firearm.



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No. 19-5495, United States v. Coop


       Unlike in Harris, the government presented no evidence that Coop knew that Harrington

was armed. None of the surveillance video from the apartment complex before or after the robbery

shows the firearm, and Harrington did not walk to the pharmacy area and pull out his weapon until

well after Coop had exited the CVS. Further, there is no evidence that the gun was visible as

Harrington left the CVS, and thus no evidence that Coop continued with the enterprise after

learning of the weapon. The only evidence that the government references is the extensive

evidence of Coop and Harrington’s planning of the robbery. But crucially missing is any evidence

from which a jury could conclude beyond a reasonable doubt that Coop knew that the robbery he

was planning would involve a firearm.        See, e.g., Rosemond, 572 U.S. at 80 (noting the

“requirement that a defendant in a § 924(c) prosecution must intend to further an armed [crime]”).

       Comparing this case to another case where we recently affirmed an aiding and abetting

conviction makes our point plain. In United States v. Johnson, 702 F. App’x 349 (6th Cir. 2017),

Johnson and his younger half-brother planned a series of armed bank robberies where Johnson,

like Coop here, acted as the get-away driver. Id. at 351. The government introduced evidence—

including Johnson’s brother’s testimony—showing that Johnson, unlike Coop here, knew that his

brother would be armed during the bank robberies. Because of Johnson’s advance knowledge of

his brother’s plan to use the firearm and his decision to nevertheless act as the getaway driver, we

held that the evidence was sufficient to support the aiding and abetting conviction. Id. at 359.

Because the government here failed to present any evidence from which a reasonable jury could

find that Coop had knowledge of Harrington’s use of the gun, we reverse his conviction.6




6
  Because we reverse Coop’s conviction due to insufficient evidence, we do not reach his
alternative arguments that the district court gave erroneous jury instructions or compounded its
error by failing to properly respond to the jury’s questions.
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No. 19-5495, United States v. Coop


                                   3. Controlled substance offenses
       Counts 3 through 7 charged Coop with knowingly conspiring to possess with the intent to

distribute controlled substances. In order to prove a conspiracy, the government must prove: “(1 an

agreement to violate drug laws, (2) knowledge and intent to join the conspiracy, and

(3) participation in the conspiracy.” Welch, 97 F.3d at 148-49. The government need not prove a

formal agreement, as “[a] tacit or mutual understanding among the parties is sufficient.” United

States v. Forrest, 17 F.3d 916, 918 (6th Cir. 1994). “The evidence that the defendant agreed to

join a conspiracy to violate the drugs laws ‘need only be slight.’” United States v. Allen, 619 F.3d

518, 522 (6th Cir. 2010) (quoting United States v. Hodges, 935 F.2d 766, 773 (6th Cir. 1991)).

And “[p]articipation in the conspiracy’s common purpose and plan may be inferred from the

defendant’s actions and reactions to the circumstances.” United States v. Hernandez, 31 F.3d 354,

358 (6th Cir. 1994) (quoting United States v. Christian, 786 F.3d 203, 211 (6th Cir. 1986)). To

prove possession of a controlled substance with intent to distribute, the government must prove

that “(1) the defendant knowingly, (2) possessed a controlled substance, (3) with intent to

distribute.” Allen, 619 F.3d at 522. Intent to distribute may be inferred from possession of a large

quantity of controlled substances. United States v. Wettstain, 618 F.3d 577, 587 (6th Cir. 2010);

SCPJI 14.01(3) (“Intent to distribute can be inferred from the possession of a large quantity of

drugs, too large for personal use alone.”).

       The evidence was sufficient to support Coop’s convictions on Counts 3 through 7. The

evidence showed that Harrington and Coop walked into the store together, walked past the cash

registers, made sure that the store was empty, and then Harrington walked back to the pharmacy

and demanded that Dr. McCray open the safe where controlled substances were stored, telling him

the specific types of drugs he wanted. Harrington then left the CVS with the see-through trash bag

containing the drugs and returned to the back of the building where Coop was waiting with the

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No. 19-5495, United States v. Coop


motorcycle to take them back to where Coop had parked the truck. When they arrived back at

their apartment, Coop hid the motorcycle while Harrington ran into the apartment with the plastic

bag of controlled substances. When police executed a search warrant of the home, they found the

motorcycle and the pills in the living room. Finally, the large quantity of drugs involved was

sufficient to support an inference of distribution. Construing this evidence in the light most

favorable to the government, a reasonable jury could conclude that Coop joined in a conspiracy to

possess with the intent to distribute the controlled substances.

                                       B. Crime of Violence
       Finally, Coop contends that aiding and abetting a Hobbs Act robbery is not a crime of

violence. Whether an offense qualifies as a crime of violence for purposes of 18 U.S.C. § 924(c)

is reviewed de novo. United States v. Rafidi, 829 F.3d 437, 443 (6th Cir. 2016).

       As Coop acknowledges, his argument is foreclosed by binding circuit precedent. We have

determined that aiding and abetting Hobbs Act robbery is a crime of violence under the force

clause of 18 U.S.C. § 924(c)(3)(A). United States v. Richardson, 906 F.3d 417, 426 (6th Cir.

2018), vacated on other grounds by Richardson v. United States, 129 S. Ct. 2713 (2019); United

States v. Richardson, 948 F.3d 733, 742 (6th Cir. 2020). We are bound by that prior panel decision,

and we accordingly reject Coop’s argument.

                                                III.
       For the foregoing reasons, we AFFIRM Coop’s convictions on Count 1 and Counts 3

through 7, but REVERSE his conviction on Count 2 and REMAND for resentencing.




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