Opinion
CRIMINAL ACTION NO. 04-CR-472.
August 19, 2005
MEMORANDUM AND ORDER
Defendant Perry Smith moves for judgment of acquittal following the jury's finding, on January 25, 2005, of his guilt of conspiring to commit a robbery that interfered with interstate commerce, committing a robbery that interfered with interstate commerce, and the use or aiding and abetting the use of firearm during a crime of violence. In the alternative, Mr. Smith seeks a new trial or an arrest of judgment. Mr. Smith argues that: (1) there was insufficient evidence to support the necessary predicate that the robbery at issue interfered with interstate commerce as required under the Hobbs Act; (2) there was insufficient evidence to convict Mr. Smith on the charge of conspiracy to commit a Hobbs Act robbery and the charge of carrying of a firearm during a violent crime; (3) the original arrest and, therefore, the search following the arrest were without probable cause and the evidence obtained in the search should have been suppressed; (4) photographs of envelopes from the business establishment that was robbed, Shernoff Salads Company, were improperly admitted into evidence during trial; (5) the admission into evidence of live .38 caliber bullets found on Mr. Smith's person during his arrest was improper; (6) Mr. Smith's and his co-defendant's objection during the Government's closing argument should have been sustained; and (7) the Court erred by presenting jury instructions that deviated from the indictment.
In the heading of one of the sections of his Motion, Mr. Smith states that there was insufficient evidence to convict him on the conspiracy to commit a Hobbs Act robbery. However, Mr. Smith does not actually make any legal or factual arguments on this point. Therefore, the Court denies the Motion as it pertains to insufficiency of evidence to support the guilty verdict on the conspiracy charge.
For the following reasons, the Court denies Mr. Smith's Motion.
I. FACTUAL SUMMARY
Defendants Perry Smith and Kevin Cleveland were charged with (1) conspiring to commit a robbery of Shernoff Salads Company on August 14, 2003, thereby interfering with interstate commerce in violation of 18 U.S.C. § 1951, (2) interference with interstate commerce by robbing Shernoff Salads Company in violation of 18 U.S.C. § 1951, and (3) the use of firearms during a crime of violence in violation of 18 U.S.C. § 924. Mr. Smith's co-defendant was charged with additional crimes which the Court will not address in this Memorandum. Mr. Smith and Mr. Cleveland were tried before a jury beginning on January 18, 2005. On January 25, 2005, the jury returned a guilty verdict against Mr. Smith and Mr. Cleveland on all charges. This Motion was filed timely. The facts presented to the jury that are relevant to the Motion follow.
On August 14, 2003, Jeffrey Shernoff, owner of Shernoff's Salad, was at Shernoff Salads located at 1400 South Warfield Street in Philadelphia. (Trial Tr. 1/18/05, at 32-33). Shernoff Salads is a manufacturer of deli salads, such as potato salad and cole slaw. (Id. at 35). Most of its customers are supermarkets or distributors of these products, but some walk-in customers buy small amounts of salads for picnics or small functions. (Id.). As such, Shernoff Salads does very little cash business. (Id.) Most of its receivables are paid checks received in the mail. (Id. at 36). Shernoff Salads has customers outside of Pennsylvania and purchases supplies and goods from outside of Pennsylvania. (Id. at 35).
Around 10:30 a.m., Mr. Shernoff was at his desk in his office, which faced the door of the office, on the telephone when two men entered his office. (Id. at 32). The office had another desk facing towards Mr. Shernoff's desk and away from the entry door. (Id. at 36). Adjacent to Mr. Shernoff's main office is a bathroom and a smaller office where Mr. Shernoff's cousin, Heidi Shernoff, worked. (Id. at 38). One of the intruders, identified by Mr. Shernoff as Defendant Cleveland, came around the desk and placed a gun to the side of Mr. Shernoff's head. (Id. at 34). The second man, identified by Mr. Shernoff as Defendant Smith, stood about 10 feet in front of Mr. Shernoff. (Id.). Mr. Shernoff testified that Mr. Smith was holding a gun but that he did not get a good look at the gun. (Id. at 104).
Mr. Shernoff attempted to move away from Mr. Cleveland while the gun was trained on his head. (Id. at 34). Mr. Cleveland then demanded that Mr. Shernoff show them where the money was. (Id.). Mr. Shernoff showed Mr. Cleveland and Mr. Smith the small cash box on his desk and on the adjoining desk in which there was a small amount of money. (Id. at 35-37). At this point, Mr. Smith and Mr. Cleveland threatened to kill Mr. Shernoff if he did not produce more money. (Id. at 37). Mr. Cleveland then asked about the other office. (Id. at 38). Mr. Shernoff told them that, other than some computers, there was nothing in that office. (Id.). Mr. Shernoff estimates that the total amount of cash taken by the Defendants from Shernoff Salads was $60.00, along with billing statements for customers and some receipts. (Id. at 84, 119). The lost billing statements and receipts resulted in Shernoff Salads being unable to bill certain customers. (Id. at 119).
Mr. Cleveland, with Mr. Smith following, then led Mr. Shernoff into the other office at gunpoint. (Id. at 38). Mr. Smith and Mr. Cleveland noticed a pocketbook in this office. (Id. at 39). While Mr. Smith and Mr. Cleveland were searching this office and the pocketbook, Mr. Shernoff was able to flee the office into the warehouse. (Id. at 40-41). Mr. Shernoff warned some of his employees, including Robert Robinson, of the on-going robbery. (Id. at 41, 145).
During the time Mr. Shernoff was outside the office, Heidi Shernoff came out of the bathroom and saw Mr. Smith and Mr. Cleveland going through her pocketbook. (Trial Tr. 1/19/05, at 28-29). Ms. Shernoff had not heard anything of the robbery events while in the bathroom. (Id. at 45). Ms. Shernoff did not notice either of the men having a gun when she first exited the bathroom. (Id. at 35). In fact, Ms. Shernoff only noticed a gun when the "man with bushy hair," which matched the style of hair Mr. Cleveland had at the time of the robbery, took his gun from a pocket and shot Ms. Shernoff in the stomach. (Id. at 34). Ms. Shernoff had had $1,000 in her pocketbook which was missing after this incident. (Id. at 31, 52).
After hearing a popping sound, Mr. Shernoff returned to the office to find Ms. Shernoff injured. (Trial Tr. 1/18/05, at 41-42). Mr. Shernoff called for 911 assistance. (Id. at 42). Mr. Robinson, one of the employees Mr. Shernoff had warned about the robbery, also heard a loud "pow" in the office. (Id. at 146). Mr. Robinson stopped and saw a man exiting the office with a gun in his hand heading towards the exterior door of Shernoff Salads. (Id. at 146-47). Mr. Robinson identified this man as Mr. Cleveland. (Id. at 147). Mr. Robinson then began walking towards the exterior door when a second man exited the office and ran towards the exterior door. (Id. at 148). Mr. Robinson identified the second man leaving the office as Mr. Smith. (Id.). Mr. Robinson did not see Mr. Smith with a gun. (Id. at 184).
After the robbers had left the building, Mr. Robinson then went to the door and looked through a peep hole. (Id. at 150). Mr. Robinson saw Mr. Smith and Mr. Cleveland get into a gray Oldsmobile with tinted windows. (Id. at 136, 150). Mr. Robinson also testified to seeing a shadow, which he believed was a third man, in the back seat of the Oldsmobile. (Id. at 151). After the Oldsmobile pulled away, Mr. Robinson, along with several other employees, went into the parking lot of Shernoff Salads and watched the Oldsmobile head onto Interstate 76 eastbound. (Id. at 152). A few minutes later, Philadelphia Police Officer Chris Lai arrived and Mr. Robinson gave a statement describing the two men and the Oldsmobile. (Id. at 132, 155).
After receiving Mr. Robinson's description, Officer Lai sent a flash report over the police radio that restated Mr. Robinson's description of the Oldsmobile and his statement that two black males wearing white t-shirts had gotten into the vehicle. (Id. at 129). About ten minutes after arriving at the robbery site, Officer Lai followed Ms. Shernoff to the hospital. (Id. at 132).
Officer Randy Vogt, along with his partner Officer Cosgrove, heard the flash report about the robbery at Shernoff Salads while operating a police wagon while driving westbound on Penrose near 26th Street. (Trial Tr. 1/19/05, at 73-74). Officers Vogt and Cosgrove then saw a vehicle matching the flash report description heading south on 26th Street that turned east onto Penrose. (Id. at 74). After making a u-turn, Officers Vogt and Cosgrove were unable to follow the vehicle immediately, but Officer Vogt saw a driver inside with bushy hair and other passengers. (Id. at 76). Officer Cosgrove sent radio reports of their pursuit of the vehicle. (Id. at 78). Officer Vogt next saw the vehicle parked on the shoulder of the road near Franklin Delano Roosevelt Park, after another police officer, Officer John Thomas, informed Officers Vogt and Cosgrove that he believed he located the vehicle. (Id. at 79-80, 152). Officer Vogt was able to recognize the vehicle as the one he and Officer Cosgrove were pursuing. (Id. at 81). Officer Thomas had radioed the car's tag information and was informed that the tag on that vehicle had been included in a report of a recent automobile robbery. (Id. at 153). Proceeding to investigate the abandoned vehicle, Officer Thomas saw several envelopes with Shernoff Salads letterhead on the passenger front seat. (Id. at 154).
Ronald Fasulo was at FDR Park at around 11:00 a.m. on the day of these events. (Id. at 98). Mr. Fasulo saw a vehicle, later identified as the gray Oldsmobile Officer Vogt was pursuing, pull onto the shoulder of the road in the park. (Id. at 99). Mr. Fasulo then saw three men get out of the car and walk away. (Id. at 100-101). A police car then pulled up and asked Mr. Fasulo about the recently vacated car. (Id. at 101). In response, Mr. Fasulo pointed out the three men to the police. (Id. at 104). Mr. Fasulo saw an officer pursue two of the men, while other officers secured the vehicle. (Id.). At no time between the point when Mr. Fasulo identified the two men and when the police apprehended these two men did Mr. Fasulo lose sight of them. (Id. at 119). The two men identified by Mr. Fasulo were Mr. Smith and Mr. Cleveland.
After assisting in the apprehension of Mr. Smith and Mr. Cleveland, Officer Philip Muscarnero, along with Officer Flynn, performed a pat down search on Mr. Smith. (Trial Tr. 1/20/2005, at 17). This search revealed two live .38 caliber bullets in Mr. Smith's pocket along with a cell phone and a large quantity of cash. (Id. at 17-18).
During the trial, Mr. Smith chose to testify on his own behalf. (Trial Tr. 1/21/05, at 80-124). Mr. Smith admitted to being at Shernoff Salads, but denied knowing about the robbery or having a gun during the robbery. (Id. at 81). Mr. Smith also testified that Mr. Cleveland was not involved in the robbery, but a man named Benjamin Fields was the actual robber. (Id. at 83-84). According to Mr. Smith, he entered Shernoff Salads with Mr. Fields because Mr. Smith believed Mr. Fields was going to apply for a job. (Id. at 81). Mr. Smith testified that he was shocked by Mr. Fields pulling out a gun and that he would never be involved in the robbery of a store. (Id.). Mr. Smith did admit on cross-examination that he has in the past robbed individuals, but that he "wouldn't have the balls to go into no establishment and rob anybody." (Id. at 98).
Mr. Smith further testified that the money found in his pocket was going to be used to pay for repairs to his car and that he was "stupid" for having the bullets in his pocket, but that he never had a firearm that day. (Id. at 91-92). Finally, according to Mr. Smith, he only confessed to the police his and Mr. Cleveland's involvement in the robbery because he was scared of what Mr. Fields would do to him if he admitted that Mr. Fields was involved. (Id. at 84).
II. LEGAL SUMMARY A. Judgment of Acquittal
A court "shall the order the entry of judgment of acquittal of one or more offenses charged in the indictment . . . if the evidence is insufficient to sustain a conviction of such offense or offenses." FED. R. CRIM. P. 29. A court applies "a particularly deferential standard" when deciding these matters.United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998).
When determining whether the evidence was sufficient, a district court must "review the record in the light most favorable to the prosecution to determine whether any rational trier of fact could have found proof of guilt beyond a reasonable doubt based on the available evidence." United States v. Wolfe, 294 F.3d 257, 261 (3d Cir. 2001) (citing Jackson v. Virginia, 443 U.S. 307 (1979)). The verdict will be upheld so long as " any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir. 1996) (quoting Jackson v. Virginia, 443 U.S. at 319) (emphasis in original). Because questions of witness credibility, weighing of conflicting testimony, and drawing factual conclusions from circumstantial evidences are for the jury, the court cannot reevaluate credibility or reweigh the evidence. See United States v. Giampa, 758 F.2d 928, 934-35 (3d Cir. 1985) (holding that the district court cannot evaluate evidence, so its role is to assess the sufficiency of the government's evidence). Therefore, the court can only order the entry of a judgment of acquittal if no evidence in the record, regardless of how it is weighed, supports a finding of guilt beyond a reasonable doubt.United States v. McNeill, 887 F.2d 448, 450 (3d Cir. 1989) (quoting Brandom v. United States, 431 F.2d 1391, 1400 (7th Cir. 1970)).
B. New Trial
Mr. Smith contends that due to several errors during trial, the Court should grant his motion for a new trial. A court may grant a new trial in a criminal matter "if the interests of justice so require." FED. R. CRIM. P. 33. The granting of a new trial is required when the "errors, when combined, so infected the jury's deliberations that they had a substantial influence on the outcome of the trial." United States v. Hill, 976 F.2d 132, 145 (3d Cir. 1992). Examples of reasons to grant a new trial include when there is a finding of prosecutorial misconduct or when the evidence does not support the jury's verdict. United States v. Dixon, 658 F.2d 181, 193 (3d Cir. 1981) (citing Luttrell v. United States, 320 F.2d 462 (5th Cir. 1963) United States v. Robinson, 71 F. Supp. 9, 11 (D.D.C. 1947)).
C. Arrest of Judgment
Pursuant to Federal Rule of Criminal Procedure 34, a court must arrest judgment, upon motion of a defendant, if: "(1) the indictment or information does not charge an offense; or (2) the court does not have jurisdiction of the charged offense." III. DISCUSSION A. Judgment of Acquittal
Aside from citing Rule 34, Mr. Smith does not make any substantive argument in furtherance of his claim for arrest of judgment. Therefore, the Court denies the Motion for Arrest of Judgment without any further discussion, because Mr. Smith failed to raise any legal or factual arguments in support of the Motion.See United States v. Hudson, 422 F. Supp. 395, 396 n. 1 (E.D. Pa. 1976) (holding that defendant's Motion for Arrest of Judgment is denied because the defendant failed to argue either of the grounds enumerated in Rule 34).
Mr. Smith contends that the Court should grant his Motion for Judgment of Acquittal because the evidence presented at trial was insufficient to support a conviction for a Hobbs Act robbery. Specifically, Mr. Smith contends that no evidence produced at trial demonstrated that the Shernoff Salads robbery interfered with interstate commerce as required under the Hobbs Act and that there was insufficient evidence to convict Mr. Smith on the conspiracy to commit a Hobbs Act robbery. He also challenges the sufficiency of the evidence to support his conviction for the carrying of a firearm during a violent crime.
1. Insufficient evidence of interference with interstate commerce
One of the essential elements of a Hobbs Act robbery is that the defendant must "in any way or degree obstruct, delay or affect commerce . . . by robbery." 18 U.S.C. § 1951(a). The Court of Appeals for the Third Circuit has held that this element is satisfied if the obstruction, delay, or affect on interstate commerce has only a de minimis impact on interstate commerce.United States v. Claussen, 328 F.3d 708, 710 (3d Cir. 2003);United States v. Traitz, 871 F.2d 368, 390 (3d Cir. 1989).
According to Mr. Smith, the evidence presented at trial did not demonstrate the robbery at Shernoff Salads had even a de minimis impact on interstate commerce. Mr. Smith does not dispute that Shernoff Salads is involved in interstate commerce, but argues that the impact of the robbery did not have the requisite de minimis impact. Mr. Smith contends the estimated $60.00 of cash belonging to Shernoff Salads, the business receipts, and the $1,000 of Ms. Shernoff's personal money had too little an impact on interstate commerce to even be considered de minimis. Mr. Smith cites to cases from other circuits where courts of appeal held the robberies did not have a direct effect on interstate commerce. Mr. Smith further argues that because the firearm charge is a companion conviction to the Hobbs Act robbery, if Mr. Smith was granted a judgment of acquittal on the Hobbs Act robbery, he would likewise be acquitted of the firearm conviction.
The firearm conviction was pursuant to 18 U.S.C. § 924, which makes it a crime to use or carry a firearm "during and in relation to any crime of violence or drug trafficking crime." 18 U.S.C. § 924(c)(1)(A). Because conviction of a crime of violence is an essential element of the firearm charge, an acquittal on the crime of violence would result in an acquittal of the firearm charge. However, the Court finds, as discussed below, that Mr. Smith's motion for judgment of acquittal for the Hobbs Act robbery is denied, so the firearm conviction would not fall on this reasoning.
The cases that Mr. Smith cites are fundamentally distinguishable from the robbery in this matter and, therefore, the Court does not find them persuasive. In United States v. Collins, 40 F.3d 95 (5th Cir. 1994), for example, an employee of a national computer company was robbed at his home of various items of personal property, including his car and his cellular phone. Collins, 40 F.3d at 97. The government argued that the defendant's robbery of the employee had an impact on intestate commerce by preventing him from doing his job. Id. at 99. The court rejected the government's contention because:
[T]he government showed neither a robbery of a business nor an actual or potential direct effect on a business caused by the robbery of an individual. Nor did the government show the robbery of an individual directly engaged in interstate commerce, or the robbery of so many individuals or of so great a sum that interstate commerce realistically would be affected. Id. at 100.
Similarly, in United States v. Mattson, 671 F.2d 1020 (7th Cir. 1982), two defendants were convicted of conspiracy to commit extortion in violation of the Hobbs Act. Mattson, 671 F.2d at 1021. The Court of Appeals for the Seventh Circuit overturned the conviction because the court found there was no direct effect on interstate commerce and the fact that only an individual had his assets depleted, and not a business, meant that the indirect affect on interstate commerce was too tenuous to satisfy the Hobbs Act requirements. Id. at 1024. The court did note that "[u]nder the depletion of assets theory, commerce is affected when an enterprise, which either is actively engaged in interstate commerce or customarily purchases items in interstate commerce, has its assets depleted through extortion, thereby curtailing the victim's potential as a purchaser of such goods."Id.
Finally, in United States v. Min Nan Wang, 222 F.3d 234 (6th Cir. 2000), another case cited by Mr. Smith, a restaurant owner's home was robbed by the defendant. Id. at 236. Part of the stolen assets were the proceeds from the business, some of which was going to be deposited in the restaurant's bank account. Id. The court reasoned that, because the robbery was directed at a private citizen in his private residence, the connection to interstate commerce was too indirect to satisfy the requirements of the Hobbs Act. Id. at 238-39.
In contrast, in the present case, the robbery of an individual is not the government's basis for the Hobbs Act charges. While Heidi Shernoff was robbed as part of the events at issue, the robbery of Shernoff Salads was the robbery that gave rise to the Hobbs Act charge. The cited cases by Mr. Smith address only the issue of whether a robbery or extortion of an individual, not of a business, rises to the level of impacting interstate commerce. The prosecution at hand is an entirely different issue. Therefore, the Collins, Mattson, and Wang cases, while informative, are not germane to this matter, and the reasoning advanced by those courts is not persuasive in this matter.
Therefore, it falls on this Court to determine if the small amount of money, the loss of receipts which resulted in an undetermined depletion of assets (because Shernoff Salads was unable to bill the businesses), and the resulting shutdown of the business for the day of the robbery had a de minimis impact on interstate commerce. The Court finds that, given the totality of the circumstances, a reasonable jury could have found the robbery had at least a de minimis impact on interstate commerce. While the $60.00 amount alone may not have had a sufficient impact, it was a reasonable inference for the jury to conclude that the loss of proceeds from the lost receipts and from any loss of business while Shernoff Salads was not operating had a minimal impact on interstate commerce. See e.g., United States v. Harrington, 108 F.3d 1460, 1468 (D.C. Cir. 1997) (finding that a robbery of a fast food restaurant had an impact on interstate commerce because the restaurant was closed for three hours and $32.00 was still missing after the police caught the defendants). Moreover, the Court finds that the very language of the Hobbs Act, namely that a defendant can be convicted if he " in any way or degree obstructs, delays or affects commerce . . . by robbery," 18 U.S.C. § 1951(a), included robberies that, while possibly having a minimal financial hardship, resulted in any de minimis obstructions or delays of interstate commerce. Besides the financial impact discussed above, the robbery of Shernoff Salads clearly delayed the distribution of its product. For example, Edward Griffith testified that he went to Shernoff Salads on the morning of August 14, 2003, but was unable to pick up the salads when he arrived because of the robbery and the subsequent police investigation. (Trial Tr. 1/19/05, at 65-66).
Therefore, in keeping with United States v. Claussen, the Court finds that a reasonable jury could have found that the evidence supported a finding that the robbery of Shernoff Salads had the requisite de minimis impact on interstate commerce and denies Mr. Smith's motion for judgment of acquittal on the Hobbs Act robbery count and the conspiracy count.
2. Insufficient evidence of carrying a firearm during a violent crime
Mr. Smith argues that the record does not provide sufficient evidence for the jury to have found beyond a reasonable doubt that Mr. Smith used or carried a firearm, as required in 18 U.S.C. § 924(c)(1)(A), in furtherance of the Hobbs Act robbery. Mr. Smith notes that the only witness who testified to Mr. Smith having a weapon was Mr. Shernoff who conceded that he was preoccupied during the robbery and did not get a good look at Mr. Smith's firearm.
The question for the Court is not to evaluate the credibility of Mr. Shernoff, but to determine if the evidence, as a whole, could lead a reasonable juror to conclude beyond a reasonable doubt that Mr. Smith used or carried a firearm in furtherance of the Hobbs Act robbery. Mr. Shernoff clearly testified that Mr. Smith had a weapon. (Trial Tr. 1/18/05, at 34). While Mr. Shernoff conceded that he was preoccupied by Mr. Cleveland's gun at his head, Mr. Smith was ten to fifteen feet from Mr. Shernoff at the time and he could not describe the gun held by Mr. Smith, these statements only raise questions of the credibility of Mr. Shernoff's statements. Mr. Shernoff did not equivocate in the slightest as to whether or not Mr. Smith had a gun. The Court can not reevaluate the evidence or evaluate the credibility of a witness's testimony; those responsibilities fell to the jury. The jury concluded that Mr. Smith was carrying a gun.
Likewise, the statements of Ms. Shernoff and Mr. Robinson that they did not see Mr. Smith carrying a weapon are issues that may have partially challenged the credibility of Mr. Shernoff's statement. Consideration of that testimony, too, was entirely an issue for the jury to weigh as possibly contradictory evidence. A reasonable juror could conclude that Mr. Shernoff gave the most accurate description of the events at Shernoff Salads because he had the greatest opportunity for observation or that Mr. Smith had concealed his weapon by the time Ms. Shernoff or Mr. Robinson saw him.
Heidi Shernoff did testify that Mr. Smith's co-defendant, Mr. Cleveland, had shot her only after removing his weapon from a pocket. A juror could reasonably conclude that, like Mr. Cleveland, Mr. Smith had concealed his gun while searching the offices and preparing to leave Shernoff Salads and go onto a public street.
Therefore, the Court finds that Mr. Shernoff's statements, taken in the light most favorable to the government, could lead a reasonable juror to the conclusion that Mr. Smith used or carried a weapon. This conclusion is further supported by the discovery of live bullets on Mr. Smith's person when he was arrested. B. New Trial
Mr. Smith challenges the relevance and prejudicial effect of allowing the admission of bullets into evidence. For the reasons described more fully below, the Court finds that the bullets properly seized were relevant and the prejudicial effect was certainly outweighed by their probative value.
Mr. Smith argues that he should be granted a new trial because "the interests of justice so require." Specifically, Mr. Smith contends that (1) his arrest was without probable cause and, therefore, the search pursuant to the arrest was unreasonable and in violation of the Fourth Amendment; (2) the admission of a photograph of the envelopes found in the car was erroneous because the original envelopes were returned by the police to Shernoff Salads in bad faith; (3) the admission into evidence of the live .38 caliber bullets found on Mr. Smith's person during his arrest was improper because the bullets were irrelevant and prejudicial; (4) during the government's rebuttal closing argument inappropriate comments concerning the metaphorical "smudges" placed by defense counsel during their respective closing arguments on the "window" to the events of August 14, 2003 were made and the defendants' objection to those comments were erroneously overruled; and (5) the Court's instructions to the jury "reduced the Government's burden of proof" by not strictly following the language of the indictment. The Court finds that none of the arguments presented by Mr. Smith offend the interests of justice, and Mr. Smith's motion for a new trial is denied.
1. Probable cause of arrest
An officer must have probable cause to make a warrantless arrest for a felony in a public place. Maryland v. Pringle, 540 U.S. 360, 370 (2003); Beck v. Ohio, 379 U.S. 89, 91 (1964). Probable cause depends on "whether at [the time of arrest] the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense." Beck, 379 U.S. at 91. Probable cause is not a scientific measurement, but "deals with probabilities and depends on the totality of the circumstances."Pringle, 540 U.S. at 371.
In determining whether probable cause existed, a court must determine what facts were available to the arresting officer at the time of arrest. U.S. v. Glasser, 750 F.2d 1197, 1206 (3d Cir. 1984). A court must then determine "whether the objective facts available to the officers at the time of the arrest were sufficient to justify a reasonable belief that an offense was being committed." Id. When considering the facts available to the arresting officers, a court must remember that police officers, because of their training and experience, may "draw inferences and make deductions . . . that might well elude an untrained person." U.S. v. Cortez, 449 U.S. 411, 418 (1981). Therefore, probable cause occurs "when the information within the arresting officer's knowledge at the time of the arrest is sufficient to warrant a reasonable law enforcement officer to believe that an offense has been or is being committed by the person to be arrested." Paff v. Kaltenbach, 204 F.3d 425, 436 (3d Cir. 2000) (emphasis added).
A court must examine "the totality of the circumstances — the knowledge and information which the officers possessed at the time of arrest, coupled with the factual occurrences immediately precipitating the arrest of the appellant — to determine if the constitutional standard of probable cause was met." U.S. v. Harris, 482 F.2d 1115, 1117 (3d Cir. 1973). The totality of the circumstances analysis may properly include information obtained by hearsay and bulletins from other police that are based on probable cause. See U.S. v. Hensley, 469 U.S. 221, 232 (1984) (holding "if a flyer or bulletin has been issued on the basis of articulable facts supporting a reasonable suspicion that the wanted person has committed an offense, then reliance on that flyer or bulletin justifies a stop to check identification");Adams v. Williams, 407 U.S. 143, 147 (1972) (holding "the subtleties of the hearsay rule should not thwart an appropriate police response").
In this case, the Court finds that there was probable cause for the arrest of Mr. Smith. The sequence of events, including descriptions of the robbers and getaway car, was so tightly and unambiguously contained that a finding of probable cause is not difficult here. Upon arrival at Shernoff Salads, Officer Lai was given a description of the getaway vehicle, a gray or silver Oldsmobile, by Mr. Robinson based on Mr. Robinson's personal observations. Mr. Robinson told Officer Lai that two black men in white t-shirts who he had seen flee the building had gotten into the Oldsmobile, which appeared to contain a third person. Mr. Robinson also told Officer Lai that the car had headed eastbound on Interstate 76. Officer Lai, who had probable cause to arrest any the individuals in the vehicle, sent a flash report over the police radio describing the vehicle and its direction of travel.
Within minutes, Officer Vogt saw a vehicle matching the description given by Officer Lai over the flash radio exiting Interstate 76. Officer Vogt, who was unable to follow the vehicle immediately, reported over the police radio the sighting and the direction the car was heading. Officer Thomas, who had heard the flash reports of Officers Lai and Vogt, found a gray Oldsmobile at Franklin Delano Roosevelt Park. Inside that car, in plain view, were Shernoff Salads Company envelopes. Additionally, when Officer Thomas reported the license tag numbers over the police computer he learned that the tags on the car were reported as stolen. Mr. Fasulo, who was at FDR Park, reported seeing three men flee from the vehicle and pointed the men out to the police. Two of these men were pursued by the police and apprehended. Mr. Smith was one of the two men apprehended. Mr. Shernoff and Mr. Robinson were brought by the police to FDR Park and they both, independently, identified Mr. Smith as one of the robbers they saw at Shernoff Salads.
Given the totality of the circumstances, the police had probable cause to arrest Mr. Smith. The arresting officer had a clear link between the men who robbed Shernoff Salads and the men who were arrested in FDR Park. Although no police chase of the vehicle from Shernoff Salads to FDR Park had occurred, there was sufficient, timely reports for the police to have probable cause to infer that the vehicle found in FDR Park was the same vehicle seen leaving Shernoff Salads, and that the men observed leaving the car by an eyewitness included the men who had reportedly robbed Shernoff Salads minutes earlier.
Considering the totality of the circumstances, the officers in this matter acted reasonably and lawfully in arresting Mr. Smith. Therefore, the Court finds that the Court's refusal to grant Mr. Smith's motion to suppress the arrest and the evidence derived from the arrest does not offend the interests of justice.
2. Admission of photograph of Shernoff Salads envelopes
Mr. Smith asserts that the Court's admission into evidence of a photograph of the Shernoff Salads envelopes found in the gray Oldsmobile was in error and mandates a new trial. The Court allowed the photograph pursuant to Federal Rule of Evidence 1004. Rule 1004 allows admission of duplicates, reproductions, or other copies of certain material if the original is lost or destroyed, not obtainable, in possession of opposing party, or the evidence relates to a collateral matter. If the duplicate is being admitted because the original was lost or destroyed, a court should not permit the admission of the duplicate if the proponent of the duplicate "lost or destroyed [the original] in bad faith." FED. R. EVID. 1004.
According to Mr. Smith, the police acted in bad faith by returning of the envelopes to Shernoff Salads following an analysis of fingerprints on the envelopes which proved inconclusive. Mr. Smith claims that, by returning the envelopes, the police denied Mr. Smith the opportunity to have further analysis done which might have resulted in a finding of exculpatory material. Further, according to Mr. Smith, the storage of the envelopes would have been a minor burden to the government and to Shernoff Salads. Mr. Smith presented no evidence of bad faith other than the suggestion that that is the only logical conclusion.
The Court finds that the returning of the envelopes to Shernoff Salads was not done in bad faith. The police were attempting to return property stolen from Shernoff Salads as promptly as their investigation would allow. The analysis having proven inconclusive, the police had no reason to expect any further analysis would be done on the envelopes. The issue is not whether the police made the best choice of what to do with the original evidence, but whether the return of the envelopes was in bad faith. Mr. Smith has not met his burden of showing that the returning of the envelopes was motivated by bad faith. Arizona v. Youngblood, 488 U.S. 51, 58 (1988). Accordingly, use of the photograph of the envelopes was appropriate under Federal Rule of Evidence 1004.
3. Admission of live .38 caliber bullets
Mr. Smith argues that the Court's admission of the .38 caliber bullets found in Mr. Smith's pocket after his arrest was in error. Specifically, Mr. Smith argues that the bullets are irrelevant and prejudicial.
Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." FED. R. EVID. 401. Even if evidence is relevant, the Court may exclude evidence "if its probative value is substantially outweighed by the danger of unfair prejudice." FED. R. EVID. 403. "[E]vidence may be excluded when its admission would lead to litigation of collateral issues, thereby creating a side issue which might distract the jury from the main issue." Blancha v. Raymark Industries, 972 F.2d 507, 516 (3d Cir. 1992).
Mr. Smith contends that the .38 caliber bullets are irrelevant because the bullet removed from Ms. Shernoff was a .22 caliber bullet, (Trial Tr. 1/19/05, at 38), and the bullet casing found at Shernoff Salads was also a .22 caliber bullet, (Trial Tr. 1/19/05, at 38). Mr. Smith argues that, because the bullets in his pocket were .38 caliber bullets, the .38 caliber bullets were clearly not used by the weapon used to shoot Ms. Shernoff. Mr. Smith further asserts that the bullets cannot be a link in "a chain of logical inferences," because they do not relate to the crime at hand. United States v. Sampson, 980 F.2d 883, 887 (3d Cir. 1992). Mr. Smith concludes that, even if the bullets were relevant, they prejudiced the jury by implying criminal behavior in this matter by use of evidence of a collateral crime.
Mr. Smith notes that the bullet from Ms. Shernoff and the casing found at Shernoff Salads, while the same caliber, were not a match according to the ballistics expert. (Trial Tr. 1/19/05, at 41-42). Given that the testimony at trial was that Mr. Cleveland shot Ms. Shernoff, not Mr. Smith, this information is a red herring as to Mr. Smith's Motion and is not relevant to the question of the relevance and prejudicial effect of the bullets from Mr. Smith's pocket.
Mr. Smith cites to a series of cases that discuss the prejudicial effect of testimony of a prior conviction or alleged crime of a criminal defendant. United States v. Morley, 199 F.3d 129 (3d Cir. 1999); United States v. Mastrangelo, 172 F.3d 288 (3d Cir. 1999); United States v. Murray, 103 F.3d 310 (3d Cir. 1998); Virgin Islands v. Pinney, 967 F.2d 912 (3d Cir. 1992); United States v. Dowling, 855 F.2d 114 (3d Cir. 1990);United States v. Echeverri, 854 F.2d 638 (3d Cir. 1988);United States v. Schwartz, 790 F.2d 1059 (3d Cir. 1986);United States v. Montefiore, 1998 WL 229759 (E.D. Pa. April 28, 1998). These cases are completely unrelated to the present dispute. The evidence being disputed here, the bullets from Mr. Smith's pocket, were not being used to show a prior criminal activity or even, in and of themselves, are criminal. While these cases do provide helpful guidelines for when evidence is prejudicial, the Court does not find them controlling in this case.
The Court finds that the .38 caliber bullets found in Mr. Smith's pocket are relevant and not unduly prejudicial. The bullets are part of the government's case to show that Mr. Smith had a weapon during the commission of a crime of violence. It is certainly true that the bullets would not be relevant to show that Mr. Smith shot Ms. Shernoff, but the government never argued that Mr. Smith shot Ms. Shernoff. Instead, the government charged Mr. Smith with the carrying and use of a firearm in furtherance of a crime of violence, the Hobbs Act robbery. The bullets, while clearly not matching the caliber of the shell found at Shernoff Salads or the bullet removed surgically from Ms. Shernoff, are a link in "a chain of logical inferences" that Mr. Smith was armed during to the robbery. Finally, given that all relevant evidence against a criminal defendant is prejudicial, the issue is whether it is unduly prejudicial or not. Mr. Smith has failed to show how the bullets are a collateral issue or otherwise would distract the jurors from one of the main issues, namely whether Mr. Smith carried a weapon during the robbery of Shernoff Salads.
4. Objection to government's closing argument
Mr. Smith reasserts the objections he made during the government's rebuttal closing argument. Mr. Smith appears to argue that the statements made during the government's rebuttal closing argument that the window into the events of August 14, 2003, "just like every window in your house, can get smudge on it. . . . The Government submits this: Defense counsel in their closing puts some smudge on our window," (Trial Tr. 1/24/05, at 139), would prejudice the jury. However, Mr. Smith fails to state how the government's closing was inappropriate and in what way any inappropriate statements would have prejudiced the jury. Therefore, the Court finds no basis for a new trial based on any statements made during the government's closing arguments.
5. Errors in jury instruction
Mr. Smith argues that the Court erred by giving a jury instruction that modified the language set out in Count III of the Indictment. In Count III, the government charged that Mr. Smith and Mr. Cleveland "knowingly used and carried, and aided and abetted the use and carrying of firearms during and in relation to a crime of violence." In the Court's instruction to the jury, the Court instructed: "To prove the defendants, Mr. Smith and/or Mr. Cleveland, used a firearm in relation to a robbery, the Government must prove that the defendants, Mr. Smith and/or Mr. Cleveland, actively employed the firearm in the commission of the robbery. . . . To prove the defendants, Mr. Smith and/or Mr. Cleveland, carried a firearm, the Government must prove that they carried a firearm in the ordinary meaning of the word `carry.'" (Trial Tr. 1/25/05, at 35-36).
Mr. Smith contends that this change from plural to singular ("firearms" to "firearm") was in violation of Apprendi v. United States, 530 U.S. 466 (2000), because it allowed a defendant to be convicted of a crime that was not charged in the indictment.Apprendi, 530 U.S. at 477. According to Mr. Smith this change from "firearms" to "firearm" resulted in Mr. Smith being convicted on a theory not presented to the Grand Jury and contained in the Indictment.
As the Court set forth at trial when defense counsel first raised this issue, the government's use of the plural "firearms" in the indictment included the singular "firearm." See 1 U.S.C. § 1 (stating "words importing the singular include and apply to several persons, parties, or things; words importing the plural include the singular"). See also, United States v. Rivera, 68 F.3d 5, 8 n. 2 (1st Cir. 1995) (holding the defendant's "contention that the court's reference throughout its instructions to the jury to `firearm,' or `weapon' in the singular, as opposed to the indictment's use of `firearms' in the plural, impermissibly altered the indictment requiring reversal, is specious"). Therefore, the Court finds that the jury instruction was proper and the charge given does not offend the interests of justice. IV. CONCLUSION
For the foregoing reasons, the Court denies Mr. Smith's Motion for Judgment of Acquittal, Motion to Arrest Judgment, and Motion for Arrest of Judgment. An appropriate Order consistent with this Memorandum follows.