Opinion
CRIMINAL ACTION NO. 00-660-1
July 25, 2003
MEMORANDUM
Defendant William Jones ("Jones") was found guilty by a jury of: (1) conspiracy to commit robbery under the Hobbs Act, in violation of 18 U.S.C. § 1951; (2) interference with interstate commerce by robbery, in violation of 18 U.S.C. § 1951; (3) two counts of using, carrying and brandishing and aiding and abetting the use, carrying and brandishing of a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1); (4) one count of using and carrying and aiding and abetting the use and carrying of a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1); and (5) two counts of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922 (g)(1). Our colleague Judge Bruce W. Kauffman presided at the trial. The case was subsequently reassigned to the undersigned.
The Hobbs Act provides, in relevant part:
Whoever in 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 shall be . . . imprisoned not more than twenty years. . . .18 U.S.C. § 1951(a).
Before the court is defendant's timely motion for judgment of acquittal or alternatively for a new trial. He raises a number of grounds in support of his motion.
Rule 29 of the Federal Rules of Criminal Procedure provides that, "[i]f the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal." Fed.R.Crim.P. 29(c)(2).
Rule 33 reads, "upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed.R.Crim.P. 33(a).
I.
We must view the evidence in the light most favorable to the Government, draw all reasonable inferences from the evidence in the Government's favor and uphold the jury's verdict unless we determine that no rational jury could have found beyond a reasonable doubt that the defendant committed the crimes charged. United States v. Stevens, 935 F.2d 1380, 1406 n. 28 (3d Cir. 1991); United States v. Ashfield, 735 F.2d 101, 106 (3d Cir. 1984).
At trial, the Government presented evidence that Jones was the ringleader in the planning and carrying out of two violent jewelry store robberies. Jones, along with Damon Harris ("Harris"), Michael Krug ("Krug"), and Darryl Lamont Franklin ("Franklin"), was involved in the first robbery on April 14, 1999 at Talisman's Jewelry Store ("Talisman's") in Reading, Pennsylvania. While Jones had invited a William Miranda ("Miranda") to participate, he did not do so. He had gone to work that day, not realizing that the robbery had been scheduled.
On the day of the Talisman's robbery, the four men gathered at Jones' home in Reading. Jones, who provided two guns for use in connection with the crime, drove Franklin to Talisman's while Krug drove Harris. Jones and Krug acted as getaway car drivers, and Harris and Franklin entered the store and committed the robbery during which the latter pistol-whipped one of the jewelry store's employees, handcuffed him and then threw him down a flight of stairs. The owner of the store struggled with Franklin for control of Franklin's gun and then shot Franklin twice. After the robbery, Jones dropped off his wounded companion at St. Joseph's Hospital where he was arrested. Jones, Harris and Krug then proceeded to Philadelphia to fence the stolen jewelry with the help of an individual named Gary Collins ("Collins").
Several months later, another jewelry store robbery occurred. As he had done in the case of Talisman's, Jones scouted out locations for the crime and ultimately selected the R and Q Jewelry Store (R Q") in Collingswood, New Jersey as the target. Jones and Harris again participated in the robbery and this time Collins, Miranda and an unnamed individual did so as well. Neither Krug nor Franklin was involved this time.
On the morning of August 19, 1999, Jones, Miranda and Harris drove from Reading to Philadelphia where they picked up Collins and stopped at the home of Jones' mother, where Jones retrieved two guns for use in the robbery. They also purchased handcuffs and duct tape in Philadelphia.
On their way to New Jersey, Jones saw an unnamed individual whom he knew and convinced him to drive the second getaway car. Harris rode with the unnamed individual, and Miranda and Collins accompanied Jones. Harris, Miranda and Collins entered the store as Jones and the unnamed individual waited outside in their cars. As with the Talisman's robbery, events at R Q did not go as planned. Two employees from R Q returned from lunch as the crime was taking place and realized what was occurring. In an attempt to escape from the store, Collins kicked the door which then jammed. Miranda kicked out a window in the door and the three men escaped. Harris returned to the car of the unnamed individual, and they headed back to Philadelphia. Jones, however, had driven away from the scene once he realized that the robbery had been discovered, leaving Miranda and Collins without a ride. The latter two men were arrested and taken into custody shortly thereafter. Jones then met up with Harris and the unnamed individual to sell the stolen jewelry.
On October 26, 2000, Jones, Harris and Krug were indicted in this action. Both Harris and Krug, who pleaded guilty to various charges, testified against Jones at trial. Miranda and Collins were also witnesses.
II.
Jones contends that he is entitled to judgment of acquittal on certain counts and a new trial on the remaining counts, or in the alternative a new trial on all counts, because the indictment charged one conspiracy to commit Hobbs Act robberies and the evidence at trial established two separate conspiracies.
Jones maintains that he is entitled to a judgment of acquittal on his convictions for: (1) conspiracy to commit robbery under the Hobbs Act; (2) using, carrying and brandishing and aiding and abetting the use, carrying and brandishing of a firearm in relation to the R Q robbery; and (3) using and carrying and aiding and abetting the use and carrying of a firearm in relation to the R Q robbery.
In order to prove a conspiracy to commit Hobbs Act robbery, the Government must establish: (1) a unity of purpose between or among the alleged conspirators; (2) an intent to achieve a common goal; and (3) an agreement to work together toward that goal. See United States v. Pressler, 256 F.3d 144, 147 (3d Cir.), cert. denied. 534 U.S. 1013 (2001) (citation omitted). Our Court of Appeals has explained that the final factor, an agreement, is the "essence of the offense."Id. The Government, of course, may prove the existence of an agreement through circumstantial evidence. Id.
In deciding whether a series of events constitutes a single conspiracy, the court must first determine whether there was a common goal among the conspirators. In addition, after examining the nature of the scheme, we also must ascertain whether the agreement sought to bring about a continuous result which could not be sustained without the continued cooperation of the conspirators. Finally, we must analyze the extent to which the participants overlapped in various dealings. United States v. Russell, 134 F.3d 171, 182 (3d Cir. 1998) (citing United States v. Kelly, 892 F.3d 255, 259 (3d Cir. 1989)). "A conviction must be vacated when (1) there is a variance between the indictment and the proof presented at trial and (2) the variance prejudices a substantial right of the defendant." Kelly, 892 F.2d at 258.
The indictment charged that between early April, 1999 and August, 1999, defendants Jones, Harris and Krug, along with Franklin, Collins, Miranda and other individuals "did conspire and agree . . . to unlawfully take United States currency and jewelry belonging to jewelry stores . . . by means of actual and threatened force, violence, and fear of injury. . . ."
There was sufficient evidence for the jury to find a common goal to commit jewelry store robberies. To achieve that goal it was necessary to case various stores, choose targets, plan and commit the daytime robberies, escape the scene, and then fence the stolen jewelry. That result could not have been sustained without the continued cooperation of a number of individuals.
While there was not a complete overlap of participants in the two robberies, Jones and Harris were deeply involved in both. Jones was responsible for casing several jewelry stores and selecting the sites. Harris talked with Jones "about going to jewelry stores on numerous occasions." Jones then informed the other accomplices of his selection and directed the plan of operation. Miranda was invited to participate in the first robbery but only missed it because of a mix-up. He did participate in the second, with Jones advising him and Collins what went wrong during the Talisman's heist. Collins helped fence the jewelry after the first incident and actually helped commit the second robbery. Franklin had been arrested after the Talisman's episode and thus was not available to take part in the later events at R Q. That leaves only Krug and the unnamed individual who were involved in just one robbery.
It is also important to emphasize that both robberies involved jewelry stores and a similar modus operandi. They occurred only four months apart, a rather short interval in light of the daring nature of the first robbery and the need to lie low for a while until things quieted down.
In United States v. DiPasguale, 740 F.2d 1282 (3d Cir. 1984), defendants were charged with conspiracy and extortion in relation to the collection of money loaned to further drug transactions and collect business debts. The conspiracy was alleged to have taken place over an almost two-year period. While there was only a month or two between some of the underlying extortions which comprised the conspiracy, there was a gap of almost one year in one instance and almost five months in another. Anthony DiPasquale directed and participated in every incident charged except one. DiPasquale, Victor Szwanki and August Redding were involved in most of the charged incidents. Defendants were convicted of the underlying extortion counts as well as for conspiracy to collect debts by extortionate means. They filed post-trial motions contending that there was an impermissible variance between the indictment, which charged one overarching conspiracy, and the proof at trial, which according to defendants established separate conspiracies to collect debts by extortion.
In affirming the jury's verdict that there was only one conspiracy, the Third Circuit relied on the similarity of method used and result obtained, as well as the partial overlap of participants. The Court found that "[t]he extortionate collections of claimed debts arising out of Anthony's drug transactions demonstrated `a continuity of purpose and a continued performance of acts." Id. at 1290. The Third Circuit found persuasive the fact that all of the collections involved the use of common resources and similar tactics.
The two jewelry store robberies in this case certainly involved similar tactics and goals, with only a relatively short pause between them, indeed less than the pause between some of the incidents in theDiPasquale conspiracy. The participants, while not identical, largely overlapped. Jones was clearly the mastermind of both robberies. A jury could certainly infer the same level of continuity between the two incidents here as existed among those in DiPasquale. We conclude that the evidence, together with the reasonable inferences to be drawn therefrom, was sufficient for the jury to find that only one conspiracy existed as charged in the indictment.
Even if we were incorrect and there were two separate conspiracies, any variance between the proof and the indictment has not "`affect[ed] the substantial rights' of the accused." Berger v. United States, 295 U.S. 78, 82 (1935); see also Kotteakos v. United States, 328 U.S. 750 (1946); Kelly, 892 F.2d at 258.
In Berger, the defendant Harry Berger had been convicted of conspiracy to utter counterfeit notes. The Supreme Court determined that the evidence at trial established two separate conspiracies with one common participant rather than the one conspiracy charged in the indictment. The first conspiracy involved passing counterfeit notes to buy rings from persons advertising them for sale while the second involved passing bogus notes to tradesmen. Harry Berger was involved in only the latter. The Court explained:
The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.295 U.S. at 82.
The Court held, however, that the variance between the single conspiracy charged in the indictment and the two separate conspiracies proven at trial did not prejudice the defendant. Even if the indictment had charged two separate conspiracies and Berger had been found guilty of only one, "his substantial rights would not have been affected."Bergrer1, 295 U.S. at 83.
In Kotteakos, the indictment named thirty-two defendants and alleged that all were involved in a fraudulent borrowing and insurance scheme. The Supreme Court found that the evidence presented at trial proved at least eight separate conspiracies. Kotteakos, 328 U.S. at 758. The petitioners were not the alleged masterminds. There was no connection among the many individual defendants except that they all had obtained illegal loans under the National Housing Act with the assistance of one Simon Brown. Id. at 753-54. After reviewing the totality of the circumstances, the Court held that the petitioners had been prejudiced by the Government's failure to allege eight separate conspiracies. Id. at 772-73. As to the Bergrer case, the Court reasoned that "[t]he sheer difference in numbers, both of defendants and of conspiracies proven, distinguishes the situation."Id. at 766. The Court further explained that the large number of defendants involved in Kotteakos placed an additional burden on each individual defendant to "safeguard against evidence affecting other defendants, to prevent its transference as `harmless error' or by psychological effect, in spite of instructions for keeping separate transactions separate."Id. at 767.
The undisputed evidence at trial demonstrated that Jones was the ringleader in both robberies. This is not a case where a lower-level operative in one of many conspiracies is prejudiced by introduction of evidence implicating other, higher-level members of the other conspiracies. See Kotteakos, 328 U.S. at 772-73. The present situation is clearly more akin to what the Supreme Court faced inBergrer rather than what it confronted in Kotteakos. The indictment charged three defendants, including Jones, with one conspiracy while at most there could only have been two, similar to the situation in Berger. In fact, there was even less opportunity for prejudice here than in Berger, because Jones was the mastermind of both alleged conspiracies while defendant Berger had been involved in only one of the two conspiracies in that case.
Jones maintains that he was prejudiced by the Government's failure to charge two separate conspiracies because the Eastern District of Pennsylvania was not the proper venue for a trial for the R Q robbery itself. According to Jones, "the government could not have charged both robberies in one indictment, and would have had no way to offer evidence to the jury regarding [the R Q] incident." As a result, defendant argues, none of the fact witnesses from the R Q episode would have testified nor would Collins or Miranda. Defendant is only partially correct. While the Government could not have charged Jones in this District with the substantive count of interference with interstate commerce by robbery of R Q in New Jersey, the Government certainly could have charged him in the Eastern District of Pennsylvania with conspiracy to commit the R Q robbery. The undisputed evidence at trial established that the R Q robbery was planned in Reading, Berks County, in the Eastern District of Pennsylvania. Furthermore, Harris testified that Jones, Miranda and Harris drove from Reading to Philadelphia in order to pick up the guns used in the R Q robbery. Therefore, a number of overt acts in furtherance of the conspiracy were committed in this District. Our Court of Appeals has recognized that a conspiracy charge can be tried in any district where a co-conspirator has committed an act in furtherance of the conspiracy. United States v. Perez, 280 F.3d 318, 329 (3d Cir. 2002).
Article III, Section 2, clause 3 of the United States Constitution provides, in relevant part, "[t]he Trial of all Crimes . . . shall be held in the State where the said Crimes shall have been committed." The Sixth Amendment to the Constitution states, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law. . . .
Defense counsel also conceded that venue was proper against Jones as to the charges of violations of 18 U.S.C. § 924 (c)(1) related to the R Q robbery even though he was not charged with interference with interstate commerce by robbery as to that incident. Moreover, Jones was indicted for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922 (g)(1), in relation to the R Q robbery. Venue is also proper as to that count. The undisputed evidence at trial established that Jones possessed the weapons used in the R Q robbery in Philadelphia prior to taking them to New Jersey for use during that crime.
Jones was charged with using, carrying and brandishing and aiding and abetting the use, carrying and brandishing of a firearm in relation to the R Q robbery and using and carrying and aiding and abetting the use and carrying of a firearm in relation to the R Q robbery.
At oral argument on the pending motion, defense counsel for the first time raised an additional argument as to why Jones had been prejudiced by the Government's failure to charge him with two conspiracies rather than one. She contended that had Jones been charged with two separate conspiracies, his trial attorney would have sought severance of those counts pursuant to Rule 14 of the Federal Rules of Criminal Procedure. Rule 14 provides, in relevant part, that "[i]f the joinder of offenses . . . in an indictment . . . appears to prejudice a defendant . . ., the court may order separate trials of counts. . . ." A defendant bears the burden to present affirmative evidence which establishes "clear and substantial prejudice." United States v. Merlino, No. 99-0363, 2000 WL 288122, at *5 (E.D. Pa. Mar. 16, 2000) (quoting United States v. Reicherter, 647 F.2d 397, 400 (3d Cir. 1981)). In doing so, "[d]efendant must show more than the fact that a separate trial might offer him or her a better chance of acquittal." Merlino, 2000 WL 288122, at *5 (citation omitted).
Defendant has come forth with no evidence of "clear and substantial prejudice." Id. (citation omitted). The mere allegation that Jones was prejudiced by the jury learning about both jewelry store robberies is not sufficient to satisfy the prejudice requirement of Rule 14.
In addition, Rule 8(a) of the Federal Rules of Criminal Procedure states, in pertinent part, that an "indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged . . . are of the same or similar character . . . ." "In determining whether two offenses . . . were properly joined" we must "look to the indictment and not the subsequent proof adduced at trial."United States v. McGill, 964 F.2d 222, 241 (3d Cir. 1992).
In a situation similar to the one before us, the First Circuit upheld the district court's denial of defendant's motion to sever the six bank robberies charged against him in the indictment. United States v. Chambers, 964 F.2d 1250 (1st Cir. 1992) (Breyer, J.). The court found that the bank robberies were of the same or similar character under Rule 8(a) since they involved similar institutional victims, occurred over a three-month period of time within the greater Boston area and with a similar method of operation. Id. at 1250-51; see also United States v. Rousseau, 257 F.3d 925 (9th Cir.), cert. denied, 534 U.S. 1013 (2001). Here the offenses charged in the indictment against Jones are of "the same or similar character," that is, they all involve jewelry store robberies and weapons counts related to those robberies. Fed.R.Crim.P. 8(a). As previously noted, they occurred over a four-month period of time and involved a similar modus operandi.
Furthermore, our Court of Appeals has explained that "[a]s long as the government has charged conspiracy in good faith, an allegation of conspiracy is a sufficient reason for trying the conspiracy and all substantive offenses together." United States v. Sharma, 190 F.3d 220, 230 (3d Cir. 1999) (citation omitted). Jones does not contend that the Government charged conspiracy to commit Hobbs Act robberies in bad faith. In fact, he simply maintains that the Government erred in failing to charge him with two separate Hobbs Act conspiracies rather than one.
The evidence at trial established the existence of a single conspiracy to rob jewelry stores. Even if there had been two conspiracies, Jones has not been prejudiced by the Government's failure to charge him with two rather than one. Accordingly, we decline to grant Jones motion for judgment of acquittal or new trial on this basis.
III.
Jones further contends that the eyewitness identification testimony of Kim Freed ("Freed") violated his right to due process. At trial, Freed testified that on April 14, 1999 in the early afternoon hours she was waiting in her car by the grocery store across from Talisman's while her son was purchasing a soda nearby. She heard a gunshot coming from behind her. Freed then noticed right beside her a car double parked. She described it as dark, like a cocoa color, although she was unsure of the model but thought it looked like an Oldsmobile. Freed described the man in the car as a "stocky . . . dark colored black male." After a few minutes, she noticed a man who looked to be in pain running towards the car. He jumped into the car, and the two men drove off in the direction of St. Joseph's Hospital.
After the robbery, Freed had a conversation with the police. She informed them that the car she saw had a Pennsylvania license plate with the first two letters BV. Freed also offered to attend a lineup to see if she could pick out the person she had observed.
A few months after the robbery, Freed met with an agent of the Federal Bureau of Investigation ("FBI"). At that meeting she was shown a photographic array and asked to identify the man she had seen. Included was a two-year-old picture of Jones when he was substantially thinner than at the time of the robbery. Freed was unable to recognize him. She later testified at trial that the pictures in the array were black and white and not of high quality.
Before she entered the courtroom to testify at the trial, the Assistant United States Attorney stated at sidebar that he did not intend to ask Freed whether she could positively identify Jones as the man in the car that was parked next to her. However, Jones' defense attorney responded that he expected to question Freed about her failure to select Jones' picture from the photographic array.
When Freed entered the courtroom for her testimony she immediately pointed out Jones as the man whose car was next to her on the day of the Talisman's robbery. The Assistant United States Attorney then informed the court and defense counsel at sidebar that Freed recognized Jones when she walked into the courtroom. Without objection from Jones' attorney, Freed thereupon testified that Jones was the man who was driving the brown getaway car on the day of the Talisman's robbery. Upon seeing him at the trial, "it flashed back to" her since she knew "the structure of his face." Freed stated that from where she was sitting in her car, she "really got a good look at the side of his face."
"A government identification procedure violates due process when it is `unnecessarily suggestive' and creates a `substantial risk of misidentification.'" United States v. Emanuele, 51 F.3d 1123, 1128 (3d Cir. 1995) (citations omitted). A suggestive identification procedure does not violate due process so long as it possesses sufficient indicia of reliability. Id. We must look at the totality of the circumstances to determine whether an identification is reliable,Id. The Supreme Court has set out the factors to be considered in making this determination:
the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.Neil v. Biggers, 409 U.S. 188, 199-200 (1972).
We must first determine whether Freed's in-court identification of Jones was unnecessarily suggestive. United States v. Mathis, 264 F.3d 321, 330-31 (3d Cir. 2001); see also United States v. Boykins, 966 F.2d 1240, 1242-43 (8th Cir. 1992). In a similar situation to the one before us, the Eighth Circuit allowed a witness' spontaneous identification. Boykins, 966 F.3d at 1243. InBoykins, a witness was unable to pick out the defendant from a photographic array. While she was walking toward the courtroom on the day of her testimony she recognized the defendant as one of the armed intruders and so identified him at trial. Id. at 1242. The Eighth Circuit determined that the identification was not unnecessarily suggestive because the witness identified the defendant without any prompting from the Government. Id. at 1243. The court stated that "a witness who spontaneously recognized a defendant should be allowed to testify to that fact." Id. Furthermore, the Eighth Circuit emphasized that there was proper disclosure of the identification to the defense and the witness was cross-examined about the circumstances surrounding her identification.
Freed's in-court identification of Jones was not unnecessarily suggestive. Prior to walking into the courtroom, Freed had no intention of fingering Jones as the individual she saw in the car. Only once she had an opportunity to see him in person for the first time since the robbery did she positively identify him. Furthermore, the Assistant United States Attorney immediately provided notice to the court and the defense of Freed's spontaneous recognition of Jones in the courtroom.
Defendant maintains that the identification was unnecessarily suggestive because Jones was sitting at the defense table and was the only African-American male in the room. We disagree. In any event, the defense vigorously cross-examined Freed and attempted to raise doubts about the reliability of her identification to the jury. As he had intended to do before Freed entered the courtroom, defense counsel also questioned her about her failure to identify Jones from the photographic array the FBI had previously shown her.
Furthermore, even assuming that the identification was unnecessarily suggestive, Freed's identification of Jones possesses sufficient indicia of reliability. See Biggers, 409 U.S. at 199-200;Mathis, 264 F.3d at 330. Freed testified that her car was parked directly beside Jones car for several minutes while she was waiting for her son to purchase a soda. According to Freed, she had several minutes to observe defendant's appearance at close range. Freed testified that from where she was sitting in her car, she "really got a good look at the side of his face." She also had suspicion that the man in the car was involved in the crime since she heard a gunshot and saw a man who looked wounded get into Jones' car. Freed's description of the car, the license plate and Jones was accurate. In addition, she testified unequivocally at trial that as soon as she walked into the courtroom, her recognition of Jones "flashed back" to her because she remembered "the structure of his face." Freed also explained that she was unable to identify Jones previously in the photographic array because the pictures were black and white and of poor quality.
The only factor in the reliability analysis that weighs in favor of defendant is the length of time between the crime and the confrontation. While the robbery of Talisman's took place on April 14, 1999, Freed did not identify him at trial until July 17, 2001, more than two years later. Even though this is a relatively long time, we do not think that this factor undercuts the strength of all of the others. Under the totality of the circumstances, we view Freed's identification as reliable. Her testimony regarding her in-court identification of Jones was not a violation of defendant's right to due process of law. Accordingly, we will deny defendant's motion for judgment of acquittal or new trial on this basis.
IV.
Jones also maintains that his convictions for conspiracy to commit robbery under the Hobbs Act, in violation of 18 U.S.C. § 1951, interference with interstate commerce by robbery, in violation of 18 U.S.C. § 1951, and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922 (g)(1), should be vacated because the Government failed to prove beyond a reasonable doubt that his activities affected interstate commerce. In support of this contention Jones cites to United States v. Lopez, 514 U.S. 549 (1995). However, the Third Circuit has now rejected all such arguments. See United States v. Clausen, Nos. 01-1839, 01-1873, 01-1882, 2003 WL 21075293 (3d Cir. Mar. 26, 2003);United States v. Singletary, 268 F.3d 196, 204 (3d Cir. 2001).
Jones does not argue that his three convictions under 1! U.S.C. § 924(c)(1) should be vacated on this basis.
As to Jones' two convictions for possession of a firearm by a convicted felon, the Singletary court found that "[t]he jurisdictional element in § 922(g)(1) distinguishes it from the statute considered in Lopez. . . ." Singletary, 268 F.3d at 204.
As for Jones' convictions for conspiracy to commit robbery under the Hobbs Act and interference with interstate commerce by robbery, theClausen court rejected a similar claim made by defendants that the Government failed to prove beyond a reasonable doubt that the defendants' activities affected interstate commerce. Relying on the opinions of all of the other circuits to address this issue in the context of the Hobbs Act, the Third Circuit held that "[i]n any individual case, proof of a de minimis effect on interstate commerce is all that is required." Id. at *2. The Third Circuit then recounted the facts which established the de minimis effect on interstate commerce, including the fact that the products purchased by the businesses originated from several different states. Id. at *3-*4.
At trial, the testimony established that both Talisman's and R Q purchased their inventories from outside of Pennsylvania and New Jersey, respectively. We find that the evidence presented at trial taken in the light most favorable to the Government establishes that the robberies at both jewelry stores had at least a de minimis effect on interstate commerce. Accordingly, we will deny Jones' motion to vacate certain of his convictions on this basis.
V.
Jones further maintains that he is entitled to a new trial due to the district court's failure to exclude the contents of a 911 police emergency tape recording. Prior to trial, the defendant filed a motion in limine to preclude admission of the tape recording. On July 16, 2001, the court held a hearing on the motion and denied it orally. The court found that the tape recording fit within several exceptions to the hearsay rule, including present sense impression and excited utterance. The court also determined that the information contained on the tape recording was reliable.
On July 17, 2001, the court issued a written order denying the motion in limine "for the reasons stated on the record during the hearing held on July 16, 2001."
As stated above, the Government presented evidence at trial that on April 14, 1999, Jones was the driver of a brown getaway car which was double-parked outside of the grocery store across the street from Talisman's. At trial, the Government called as a witness Sandra Lee Burkhart ("Burkhart"), who was working as a check-out attendant at the grocery store at the time of the Talisman's robbery. Burkhart testified that while the robbery was in progress, she went outside and recorded on the back of a business card the license plate number of the brown car.
Within moments after returning to the store, Burkhart gave the business card to Ray Breidegam ("Breidegam"), who lived across the street from Talisman's. At trial, Breidegam testified that after he received the business card with the license plate number recorded on it, he walked across the street to Talisman's. He then gave the card to Louis Cafoncelli ("Cafoncelli"), the owner of the store, and informed him that it contained the license plate number of the car across the street. Cafoncelli then called 911 and read to the police over the phone the license plate number from the card.
The Government played the recorded 911 call at trial. During the call, Cafoncelli informed the police that the license plate number was BVD 9885. Cafoncelli testified that he had not personally observed the number. At trial the evidence showed that the car Jones drove on the day of the Talisman's robbery had a license plate number of BVB 9885 rather than the BVD 9885 number which was written on the business card and reported to the police. The Government did not introduce the business card containing the license plate number since it had been lost prior to trial.
Defendant maintains that the 911 telephone recording was hearsay and should not have been admitted. The Government counters that the recording was correctly admitted under the present sense impression, excited utterance, past recollection recorded and residual hearsay exceptions. Fed.R.Evid. 803(1), 803(2), 803(5) and 807.
The present sense impression exception to the hearsay rule provides that "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter" is "not excluded by the hearsay rule." Fed.R.Evid. 803(1). There are three requirements which must be met before hearsay evidence may be admitted as a present sense impression: (1) the declarant must have personally perceived the event described; (2) the declaration must be an explanation or description of the event rather than a narration; and (3) the declaration and the event described must be contemporaneous.United States v. Mitchell, 145 F.3d 572, 576 (3d Cir. 1998).
Burkhart's recording of the license plate number onto the business card clearly qualifies as a present sense impression. She personally perceived the license plate number when she walked outside of the grocery store. Her recording of the number onto the business card qualifies as a description. Furthermore, she wrote down the license plate number immediately upon viewing it. She had brought a pen and business card outside with her and wrote down the number while still outside.
The Government then maintains that the recording of Cafoncelli's 911 call during which he recounted the license plate number from the business card qualifies as a past recollection recorded. That exception to the hearsay rule permits the admission of:
A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly.
It is undisputed that the business card on which Burkhart wrote the license plate number was given to Cafoncelli by Breidegam. Furthermore, Cafoncelli testified that at the time he read the license plate number to the police, he had the business card in front of him. He also stated at trial that he carefully recounted the letters and numbers over the telephone. In addition, the business card has been lost, and Cafoncelli could not presently recall the number while on the witness stand. Under the facts as stated above, the 911 recording qualifies as a past recollection recorded.
At each step, the evidence of the license plate number, although hearsay, had sufficient indicia of reliability and is admissible under exceptions to the hearsay rule. When faced with a similar evidentiary issue, the Second Circuit admitted evidence of a license plate number that an individual had recounted just after a bank robbery to a bank customer, who immediately informed a bank employee of the number. The bank employee contemporaneously wrote down the license plate number as it was told to him. United States v. Medico, 557 F.2d 309, 315-16 (2d Cir. 1977). The court found that the testimony of the bank employee was admissible, even though the person who actually saw the license plate was unavailable to testify. The Second Circuit held that the testimony was reliable because it was relayed immediately after the incident and the likelihood of inaccuracies was small. The court further found that "[t]he probability that the information was accurate is enhanced by the fact that [the individual] transcribed it onto his checkbook as it was being told to him."Id. at 316. This analysis fits the situation before us.
Accordingly, we will deny defendant's motion for a new trial on the basis that the 911 tape recording was improperly admitted.
Since we have found that the evidence was admissible under the present sense impression and past recollection recorded exceptions to the hearsay rule, we need not address the Government's arguments that the recording is admissible under the excited utterance or residual hearsay exceptions. Fed.R.Evid. 803(2), 807.
VI.
We have carefully reviewed the remaining grounds asserted by the defendant and find them to be without merit.VII.
Accordingly, we will deny the motion of defendant William Jones for judgment of acquittal or new trial.ORDER
AND NOW, this day of July, 2003, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that motion of defendant William Jones for judgment of acquittal or new trial is DENIED.