Background
A federal jury convicted Joshua Nesbitt and Shawn Burkhalter of offenses arising from a 2015 crime spree in the Kansas City area. The evidence tied them to robberies targeting drug dealers, the firearm killings of Danny Dean and Anthony Johnson, efforts to recover and conceal the murder weapon, intimidation of witnesses, and a convenience-store robbery. Ballistics evidence established that the same stolen AR-15 was used in both killings.
The district court denied Burkhalter’s request for a separate trial and admitted portions of two witnesses’ sworn grand jury testimony after they claimed at trial not to remember the relevant events or their earlier testimony. The jury convicted Nesbitt on every count he faced and Burkhalter on all but one count. After dismissing two firearm-murder counts because of potential double-jeopardy concerns, the district court imposed four consecutive life sentences on Nesbitt and five on Burkhalter.
The Court’s Holding
The Eighth Circuit affirmed. It held that denying severance was not an abuse of discretion because Burkhalter failed to provide a firm representation that Nesbitt would testify and offer exculpatory evidence at a separate trial. The court also found sufficient evidence of a single drug-distribution conspiracy, the required federal nexus for the witness- and evidence-tampering offenses, Nesbitt’s participation in the Dean killing, the effect on commerce from the robbery of marijuana dealer Johnson, and Burkhalter’s identity as the person who threatened Lee.
The court further held that the witnesses’ sworn grand jury testimony was admissible as substantive evidence because their asserted memory loss and repudiation at trial were inconsistent with their prior statements, and both witnesses appeared and were subject to cross-examination. The Hobbs Act instructions correctly stated that robbing drugs or proceeds from a drug dealer affects commerce as a matter of law without directing the jury to find that the victims were dealers or that drugs were targeted.
The panel declined to decide whether the consecutive life sentences imposed for the convenience-store firearm count were procedurally or substantively unreasonable. Applying the concurrent sentence doctrine’s logic to consecutive life terms, it concluded that success on those challenges would provide no present benefit because each defendant remained subject to multiple other consecutive life sentences.
Key Takeaways
- A defendant seeking severance to obtain a codefendant’s testimony must provide a firm representation that the codefendant would testify at a separate trial and offer exculpatory evidence.
- Sworn grand jury testimony may be admitted substantively when a trial witness claims not to remember the events or prior testimony, provided the witness testifies and is subject to cross-examination.
- Robbing a marijuana dealer of drugs or drug proceeds satisfies the Hobbs Act’s interstate-commerce requirement as a matter of law.
- An appellate court may decline to review one consecutive life sentence when invalidating it would not reduce the defendant’s imprisonment or otherwise prevent prejudice.
Why It Matters
The decision illustrates the substantial circumstantial evidence that can sustain federal conspiracy and tampering convictions, including coordinated drug-dealer robberies, recorded jail calls, threats, efforts to recover a weapon, and conduct demonstrating consciousness of guilt. It also confirms that defendants need not know a contemplated proceeding will be federal for the witness-tampering statute’s federal-proceeding nexus to be satisfied.
For trial lawyers, the opinion underscores that professed memory loss may open the door to substantive admission of sworn grand jury testimony and that speculative indications of a codefendant’s willingness to help will not establish the showing required for severance.