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Criminal Law

: Tenth Circuit Blog

Court affirms conviction based on co-conspirator's brandishing of firearm

By Shari Allison

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United States v. Bailey, No. 19-5069, 2020 WL 5083329 (10th Cir. Aug. 28, 2020) (OK) Mr. Bailey committed a series of robberies at Walgreens. For the robbery at issue in this appeal, he coached a kid through the robbery, gave him a firearm and mask, and acted as a getaway driver. He was ultimately convicted of Hobbs Act conspiracy, Hobbs Act robbery and brandishing. Mr. Bailey argued for the first time on appeal that there wasn?t sufficient evidence for the brandishing because the evidence showed that the kid/accomplice did the actual brandishing and the indictment never specifically charged Mr. Bailey as an aider/abettor under 18 USC § 2. The Tenth flushes on the first prong of plain error review (i.e. they found no error occurred at all) while noting that the issue is better framed as a constructive amendment argument than a sufficiency one...continue to full post

Full post as published by Tenth Circuit Blog on August 28, 2020 (boomark / email).