United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED March 22, 2023 No. 19-20251 Lyle W. Cayce Clerk

United States of America,

Plaintiff—Appellee,

versus

Marc Anthony Hill; Bennie Charles Phillips, Jr.; Nelson Alexander Polk; John Edward Scott,

Defendants—Appellants.

Appeal from the United States District Court for the Southern District of Texas No. 4:17-cr-00007-1

ON PETITION FOR REHEARING

Before Wiener, Dennis, and Duncan, Circuit Judges. James L. Dennis, Circuit Judge: The petitions for panel rehearing by Marc Hill and Bennie Charles Phillips, Jr. are GRANTED. The unopposed motion to recall the mandate by John Scott and Nelson Polk is GRANTED, and the mandate is RECALLED. Our prior panel opinion issued May 24, 2022, United States v. Hill, 35 F.4th 366 (5th Cir. 2022), is WITHDRAWN, and the following opinion is SUBSTITUTED therefor: Case: 19-20251 Document: 00516686016 Page: 2 Date Filed: 03/22/2023

No. 19-20251

Marc Hill, Bennie Charles Phillips, Jr., Nelson Polk, and John Scott (collectively “Defendants”), in concert with Trayvees Duncan-Bush,1 became involved in an armored car robbery at a bank automated teller machine (ATM) scheme masterminded by Redrick Batiste.2 The scheme involved staking out ATMs to identify when armored car drivers would replenish the cash inside and then robbing the armored car at the time of delivery by shooting and killing the driver. Batiste successfully executed this murder-robbery scheme at a Wells Fargo bank ATM in Houston, Texas in 2016 with the assistance of Hill and Polk (the “Wells Fargo murder- robbery”), resulting in the death of an armored car driver. Batiste then planned a second murder-robbery at an Amegy Bank ATM in Houston (the “attempted Amegy Bank ATM murder-robbery”) with the help of all four Defendants. Acting on a tip, and after months of surveillance of Batiste, following the Wells Fargo ATM murder-robbery, law enforcement converged on the Amegy Bank ATM the day of the planned Amegy Bank ATM murder-robbery to turn the plot into a takedown. Batiste opened fire during the ambush but was shot and killed by the officers’ return fire. Law enforcement eventually arrested Hill, Polk, Scott, and Duncan-Bush at the scene and later arrested Phillips, who was not present for the planned Amegy Bank ATM murder-robbery. As the result of the Wells Fargo ATM robbery and the attempted robbery of the Amegy ATM, the surviving Defendants were charged and prosecuted for aiding and abetting robbery, attempted robbery, and aiding and abetting the use of a firearm during a crime of violence causing death of a person. In one consolidated case, after a two- week jury trial, the Defendants were each convicted on all counts. On appeal, the Defendants each raise multiple issues challenging their convictions and sentences. For the following reasons, we VACATE the Defendants’

1 Duncan-Bush pleaded guilty and is not a defendant in this matter. 2 Batiste was killed by police during the arrest.

2 Case: 19-20251 Document: 00516686016 Page: 3 Date Filed: 03/22/202