Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit
4-8-2004
USA v. Haywood Precedential or Non-Precedential: Precedential
Docket No. 01-4086
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Recommended Citation "USA v. Haywood" (2004). 2004 Decisions. Paper 750. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/750
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL Attorneys for Appellee UNITED STATES COURT OF APPEALS OPINION FOR THE THIRD CIRCUIT McKEE, Circuit Judge. No. 01-4086 Ira H aywood appeals his UNITED STATES OF AMERICA convictions for robbery under Virgin Islands law and for several federal charges v. arising out of that robbery. For the reasons that follow, we will affirm his robbery IRA HAYWOOD, conviction and his convictions for the federal crimes of interference with Appellant commerce by robbery and possession of a firearm during a crime of violence. Appeal from the United States District However, we will reverse his conviction Court for possession of a firearm with an for the Virgin Islands obliterated serial number and remand for a (Crim. No. 00-cr-0029-2) new trial. We will also reverse his District Judge: Hon. Thomas K. Moore conviction for possession of a firearm within 1000 feet of a school but remand Argued: April 28, 2003 with a direction to enter a judgment of acquittal on that charge. Before: ROTH, McKee and COWEN, Circuit Judges I. FACTS
(Filed: April 8, 2004) Viewed in the light most favorable to the government, the trial evidence STEPHEN A. BRUSCH, ESQ. (Argued) showed that on December 28, 1999, at 28-29 Norre Gade, 2nd Floor approximately 8:00 p.m., America’s Bar P.O. Box 988 and Poolroom, located in St. Thomas, St. Thomas, U.S.V.I. 00804 United States Virgin Islands, was robbed. Attorney for Appellant The owner, America Santiago, and a customer, Carmen Rodriquez, were in the DAVID M. NISSMAN, ESQ. bar at the time. Santiago testified that two United States Attorney masked men entered the bar carrying NELSON L. JONES, ESQ. (Argued) firearms. Santiago described one firearm Assistant United States Attorney as very big and one as smaller. She also U.S. Courthouse & Federal Building described one robber as being “short and a 5500 Veterans Drive, Suite 260 little strong,” and the other as “tall, but a Charlotte Amalie, St. Thomas, U.S.V.I. little darker.” She testified that the men 00802 demanded money and fled with approximately $40 to $60 in bills and time of his initial call until he saw the approximately $10 in coins.1 police approaching. He saw the green car with the two men inside stop at a stop light Rodriquez testified that she saw two before making a left turn and heading in an masked men come into the bar and easterly direction. Charles conveyed this demand money. The men entered with two information to the police and watched as guns, a big one and a small one. She said the police chased the green car with the she was scared and threw $15 at the two men inside. However, Charles was masked robbers. unable to identify the two robbers in court.
Duke Charles, a cab driver who Virgin Islands Police Officer lives next door, approximately fifty feet Alphonso Boyce testified that he and from the bar, saw two men standing Officer Conrad Gilkes heard the radio outside the bar at approximately 8:00 p.m. transmission regarding a robbery in on the night of the robbery. One man progress and proceeded to the area. pulled a small black gun from his waist, Boyce also heard the subsequent and the two men then entered the bar. transmission regarding the direction of Charles testified that the two men wore the green car. He then saw the car and white T-shirts and were not wearing masks gave chase. when he saw them enter the bar. He immediately called the police on his cell The green car eventually crashed phone, then ran upstairs to the roof of the into a pole in the area of the Enid Bea building. He testified that from the roof, Public Library. Ira Haywood, the driver, he heard voices saying, “This is a hold-up. and Kevin White, the passenger, were Give me the money.” Charles also ordered out of the car. When Haywood testified that he saw the men leave the bar got out, Boyce saw part of a gun fall from and walk up the street towards the Tower Haywood’s waist. A search of the car Apartments. Shortly thereafter, Charles disclosed the bottom portion of the observed a green car come down the street firearm, a shotgun, ammunition, a ski carrying the same two men that he had mask, gloves, tools and numerous coins. observed entering and leaving the bar. Sandra Koch, a Federal Bureau of Charles was in constant contact with the Investigation hair and fiber expert, later Virgin Islands Police Department from the matched hair fiber samples from Haywood with hair fiber found in the ski mask recovered from the car. 1 Santiago also testified that she sold Virgin Islands Police Detective liquor, Heineken beer and Coors Light David Monoson found a shotgun beer at the bar. As we will discuss below, between the seats of the car Haywood this is important for purposes of federal was driving. A firearm frame and jurisdiction.
2 magazine were also found under the possession of a firearm with an obliterated driver’s seat. Monoson testified that $15 serial number, in violation of 18 U.S.C. §§ was found on the dash board of the car, 922(k) and 924(a)(1)(B); Count Six $27 was removed from blue pants on the charged White with possession of a pavement outside the car and coins were shotgun during (and in relation to) a crime found on the driver’s side of the car. of violence, in violation of 14 V.I.C. § Monoson further testified that the serial 2253(a); Count Seven charged both with numbers from the shotgun and handgun possession of a firearm within a thousand had been obliterated, and that the feet of a school, in violation of 18 U.S.C. handgun had been manufactured in §§ 922(q)(2)(A) and 2. Counts Eight, California and the shotgun had been Nine and Ten charged Haywood with manufactured in Connecticut. separate offenses occurring before the robbery of the bar. Those counts were Virgin Islands Police Detective severed and subsequently dismissed Warrington Tyson later measured the without prejudice. distance from America’s Bar to the Ulla Muller Elementary School. That Virgin Islands Police Detective distance was 421 feet, 4 inches. Tyson Darren Foy testified that the bar is a testified that he took the measurement business established in the Virgin Islands from the bar to the entrance gate of the selling liquor and beer as well as non school. alcoholic beverages. He also testified that the products sold at the bar, On March 2, 2002, Haywood and specifically, Heineken beer and Miller White were charged in a ten count beer, come from mainland United States. superseding indictment with the following violations: Count One charged both Haywood and White testified in Haywood and White with interference their own defense, and both denied with commerce, in violation of 18 U.S.C. participating in the robbery. Haywood §§ 1951 and 2; Count Two charged claimed that he did not stop the car he Haywood with possession of a firearm was driving when chased by police during the commission of a crime of because he had marijuana and was afraid violence, in violation of 18 U.S.C. §§ that he would be arrested on drug 924(c)(1) and 2; Count Three charged charges. White with possession of a short barreled shotgun during (and in relation to) a crime The jury found Haywood and of violence, in violation of 18 U.S.C. §§ White guilty as charged. Haywood was 924(c)(1) and 2; Count Four charged both sentenced to a total period of with robbery in the first degree, in imprisonment of 125 months, and then violation of 14 V.I.C. §§ 1862(2) and 11; Count Five charged Haywood with
3 filed this appeal. 2 convictions, on Counts One, Two, Five and Seven, must be reversed because there II. DISCUSSION was insufficient evidence that he robbed the bar. He begins by noting that neither Haywood makes a number of Santiago nor Rodriquez could identify him arguments in his appeal. Each is as one of the robbers. He then argues that considered separately below. the only evidence connecting him to the robbery was Charles’s testimony that the A. Insufficient Evidence of Robbery.3 car carrying the robbers was the same car Haywood argues that all of his that Charles told the police to follow, and the police officers’ testimony that the car 2 they followed at the start of the chase was White also filed an appeal. We the same car that crashed into the library. affirmed his judgment of conviction and Accordingly, Haywood claims that the sentence on June 14, 2002. only established facts are that the bar was 3 robbed and that he was driving a green car “In reviewing a jury verdict for that crashed into the library. He contends sufficiency of the evidence, we must that all of the other evidence was consider the evidence in the light most circumstantial and lacked a logical and favorable to the government and affirm the convincing connection to the established judgment if there is substantial evidence facts. from which a rational trier of fact could find guilt beyond a reasonable doubt.” In support of his claim of United States v. Brown, 3 F.3d 673, 680 insufficient evidence, Haywood notes (3d Cir. 1993) (citation and internal that Charles testified that he saw only quotations omitted). “In determining one small gun, which was removed from whether evidence is sufficient, we will not the waistband of one of the men right weigh the evidence or determine the before they entered the bar. Haywood credibility of witnesses. . . . Appellate claims that since Charles could see one reversal on the grounds of insufficient of the men enter the bar with a small gun, evidence should be confined to those cases it is inconceivable that he would not also where the failure of the prosecutor is clear. have seen the shotgun used by the other The evidence need not be inconsistent with man. Yet, Charles never testified about every conclusion save that of guilt, so long the other man carrying a shotgun. as it establishes a case from which a jury Moreover, Charles testified that both could find the defendant guilty beyond a men were unmasked before they entered reasonable doubt. . . . A defendant the bar, but Santiago and Rodriquez challenging the sufficiency of the evidence testified that the robbers were masked bears a heavy burden.” United States v. when they entered the bar. Further, Casper, 956 F.2d 416, 421 (3d Cir. 1992) while Charles testified that the robbers (citations omitted).
4 wore white T-shirts, neither Santiago nor reasonably conclude beyond a reasonable Rodriquez gave a description of the doubt that Haywood was the shorter of the clothes the robbers were wearing. In two men and that the shorter man had the addition, Officer Boyce testified that the smaller firearm. change found at the scene of the arrest was in quarters, nickels and dimes, while Charles called the police on his Santiago testified that the $10 in change cell phone while he was still observing she gave to the robbers was only in the two men he saw outside of the bar. quarters. In addition, Boyce testified that He was still watching as they went into the car that he followed was blue, but the bar with guns. He then ran up to the Charles testified that the car he told the top of his building where he said he police to follow was green. Finally, could see the entire area. He testified that Haywood argues that Boyce testified that he heard someone say “Give me money. the slide of a gun fell out of Haywood’s This is a holdup.” Charles watched the waistband when Haywood got out of the men as they left the bar and made a left car. However, Detective Monoson turn into some condominiums. He then testified that he was told that the slide saw them coming down the street full was thrown out of the car during the speed in a green car. They stopped at a pursuit. In Haywood’s view, the lack of stoplight because there was another car direct evidence linking him to the in front of them, and then turned left. robbery together with the inconsistent Charles then saw the police car and told circumstantial evidence demonstrates them that the robbers were making a left that there was insufficient evidence to turn. He continued watching as the sustain his conviction for robbery. police started chasing the car with the Therefore, all convictions must be two robbers in it. reversed. We disagree. There was more than sufficient evidence to sustain Boyce’s testimony establishes that Haywood’s robbery conviction. the car he stopped was the same one that Charles saw. Boyce told the occupants to The fact that neither Santiago nor get out of the car and Haywood, the driver, Rodriguez could identify Haywood as one did as instructed. When he got out, the of the robbers is unremarkable given that slide for the top of a gun dropped to the both women testified that the men who ground from inside Haywood’s waistband. robbed the bar were masked. As noted The car was searched and the bottom half above, the evidence showed that two of the gun that went with the slide was masked men, each carrying a firearm, recovered, as well as a ski mask, gloves robbed the bar. One firearm was smaller and ammunition. Several coins had fallen than the other. One man was short and from the car as well. strong and the other was taller but a little darker. Testimony allowed this jury to Lucy Krigger, the police dispatcher,
5 testified that Charles gave the police the obliterated, or altered and license plate number of the car the robbers has, at any time, been were driving. As noted, Koch, the FBI shipped or transported in witness, testified that a hair sample taken interstate or foreign from Haywood matched the hair found in commerce. the ski mask.4 The district court instructed the jury on the Given this testimony as well as the § 922(k) charge as follows: testimony about the shot gun that was First, that on the same day, recovered, it is disingenuous to claim that December 28 of last year, the evidence was insufficient to convict here in St. Thomas, Ira Haywood of robbing the bar. Haywood knowingly B. Possession of a Firearm with an possessed a firearm, that is, Obliterated Serial Number. a .380 Davis Industries Haywood was also convicted of pistol, which firearm at Count Five, possession of a firearm with some point in time had been an obliterated serial number. Title 18 transported in interstate U.S.C. § 922(k) provides: commerce, and from which It shall be unlawful for any the manufacturer’s serial person knowingly to number had been removed transport, ship, or receive, and obliterated. in interstate or foreign commerce, any firearm App. 506-07. Haywood argues that the which has had the district court’s instruction was erroneous importer's or because it did not require the government manufacturer's serial to prove beyond a reasonable doubt that number removed, Haywood knew that the serial number on obliterated, or altered or to the pistol had been obliterated when he possess or receive any possessed it. firearm which has had the Title 18 U.S.C. § 924(a)(1)(B) importer's or governs the penalty provisions for manufacturer's serial violations of § 922. “In 1986 Congress number removed, enacted the Firearms Owners’ Protection Act, which modified the penalty provisions of 18 U.S.C. § 924. . . . Where the 4 preexisting statute had provided criminal The jury could certainly conclude that, penalties for ‘[w]hoever violates any given the climate and the amount of snow provision of this chapter,’ . . . the amended that falls in St. Thomas, Haywood did not version, insofar as here relevant, imposes have a ski mask because he was on his criminal penalties on ‘whoever knowingly way to or from the slopes.
6 violates subsection . . . (k) . . . of section that affects substantial rights. If all three 922.’” United States v. Haynes, 16 F.3d conditions are met, an appellate court may 29, 33-4 (2d Cir. 1994) (citations omitted) then exercise its discretion to notice a (emphasis in original). The courts of forfeited error, but only if (4) the error appeals that have considered the issue after seriously affects the fairness, integrity, or this amendment became effective have all public reputation of judicial proceedings.” held that a § 922(k) conviction now Johnson v. United States, 520 U.S. 461, requires not only knowing possession of 467 (1997) (citations, internal quotations the firearm, but also knowledge that the and brackets omitted). In the case of an serial number on the firearm had been erroneous jury instruction, “the relevant obliterated. See United States v. inquiry . . . is whether, in light of the Abernathy, 83 F.3d 17, 19 n.1 (1st Cir. evidence presented at trial, the failure to 1996); United States v. Fennell, 53 F.3d instruct had a prejudicial impact on the 1296, 1300-01 (D.C. Cir. 1995); United jury’s deliberations, so that it produced a States v. Haynes, 16 F.3d at 34; United miscarriage of justice.” United States v. States v. Hooker, 997 F.2d 67, 72-74 (5th Xavier, 2 F.3d 1281, 1287 (3d Cir. 1993) Cir. 1993). Thus, pursuant to the (citations and internal quotations omitted). amendment, knowledge that the serial “In other words, did the error seriously number is obliterated at the time of affect the fairness, integrity or public possession is an element of the offense of reputation of judicial proceedings?” Id. a § 922(k) violation. We therefore hold (citation, internal quotations and brackets that the time of the weapon’s possession is omitted). Although we have not adopted an element of a violation of § 922(K). a per se rule, we have held that “the Accordingly, the district court’s instruction omission of an essential element of an was erroneous. offense [in a jury instruction] ordinarily constitutes plain error.” Id. (citation However, Haywood’s trial counsel omitted) (emphasis in original). “[This] is did not object to the instruction, and consistent with the Supreme Court’s therefore Haywood must establish plain instruction that due process requires ‘proof error.5 United States v. Olano, 507 U.S. beyond a reasonable doubt of every fact 725, 734-735 (1993). “Under [the plain necessary to constitute the crime with error] test, before an appellate court can which [the defendant] is charged.’” Id. correct an error not raised at trial, there (quoting In re Winship, 397 U.S. 358, 364 must be (1) error, (2) that is plain, and (3) (1970)).
Here, the district court’s failure to 5 instruct the jury that knowledge of the Had Haywood objected to the obliterated serial number is an element of instruction, this issue would be subjected the crime undoubtedly had an effect on the to a harmless error analysis. Neder v. jury’s deliberations. “[T]he jury could not United States, 527 U.S. 1, 7-15 (1999).
7 have been expected to make a finding charged.” In re Winship, 397 U.S. 358, beyond a reasonable doubt as to 364 (1970). Speculation about what the [Haywood’s knowledge of the obliterated jury could have done if properly serial number] in the absence of an instructed falls woefully short of that instruction to do so.” Xavier, 2 F.3d at burden. 1287. Therefore, the inquiry becomes Accordingly, we find that the whether the failure to instruct was district court’s failure to instruct the jury prejudicial, i.e., did the failure to instruct on the element of knowledge of the on knowledge affect Haywood’s due obliterated serial number amounted to process rights in a manner that “‘seriously plain error. Therefore, we will reverse the affect[ed] the fairness, integrity or public conviction on Count Five and remand for reputation of judicial proceedings.’” Id. a new trial. (quoting Olano, 507 U.S. at 736. C. Possession of a Firearm in a School We believe it did. The Zone. government argues that because Haywood was also convicted on Haywood possessed the pistol, hid it on Count Seven – possession of a firearm his person and used it in a robbery, the within 1000 feet of a school zone. That jury could reasonably infer that Haywood statute provides: would have examined the pistol at some point before the robbery to see if it It shall be unlawful for any worked. In addition, the government individual knowingly to notes that at some point after the robbery, possess a firearm that has Haywood disassembled the pistol. moved in or that otherwise Therefore, given these considerations, affects interstate or foreign the jury could have reasonably inferred commerce at a place that the that Haywood discovered that the pistol’s individual knows, or has serial number had been obliterated. That reasonable cause to believe, is true. The jury could have found is a school zone. beyond a reasonable doubt that Haywood knew the gun had an obliterated serial 18 U.S.C. § 922(q)(2)(A). A “school number had it been instructed of the need means a school which provides elementary to do so under § 922(k). However, no or secondary education, as determined such instruction was given and the under State law.” 18 U.S. C. § 921(a)(26). government’s argument about the jurors’ “[S]chool zone” is defined to mean: “in, thought process therefore rests upon pure or on the grounds of, a public, parochial or speculation. Haywood has a due process private school” or “within a distance of right to “proof beyond a reasonable 1,000 feet from the grounds of a public, doubt of every fact necessary to parochial or private school.” 18 U.S.C. § constitute the crime with which [he] is 921(a)(25)(A), (B).
8 Haywood argues that th e measurements were taken, government failed to prove that he knew or the wheel that is attached, had reason to believe that he possessed a affixed to the stick, there’s a firearm in a school zone as required under little box in the top, and as the statute. We agree. you push the wheel it rolls As noted earlier, Detective Tyson the numbers around. So it testified that he measured the distance gives you, as the wheel is from America’s Bar and Poolroom to the rolling, it measures the Ulla Muller Elementary School to be 421 distance as it goes from one feet, 4 inches. Tyson also testified that the point to the other. measurement was taken from the bar to the school’s entrance gate. However, the Q: Okay. So, to take the location of the bar in relation to the school measurement, did you walk is not clear from the evidence. There is around, from America’s Bar nothing to show whether they share the around the corner all the same frontage or are around the corner way round to Ulla Muller from each other or whether all approaches School? to the “school zone” are clearly marked. Therefore, the evidence did not establish A: It was measured from the whether Haywood necessarily would have building into the entrance of seen the school on the way to or from the the school, just within the bar. Tyson testified on cross-examination gates. as follows: Q: The device you used to THE COURT: Is that line measure the distance to the of sight? Can you see school, is that a line of sight straight? device measurement? THE WITNESS: Yes, you A: No. The measurement, I can. You can. explained it already,6 the BY [Defense Counsel]:
6 Q: So you went in a straight On direct examination, Officer Tyson line. Was that on a road or testified that he used measuring equipment did you have to go through known as a “Monson Company, Model bush? 1212,” and said “[i]t’s like a long piece of stick with a wheel attached to the end that A: That would be on the the traffic officers use when they’re taking road. measurements in traffic accidents.” App. at 303-304.
9 App. at 304-05 (emphasis added). Q: You live in Tutu, but you know where America’s Bar However, the government did not is, you said? produce any evidence of any school zone signs or similar identification that would A: Yes, sir. St. Thomas is support the inference that Haywood should very small. have known that a school was within 1000 feet of the bar. Nor did the government Q: And you know how to produce any evidence that Haywood had to get to America’s Bar? pass by the school to get to or from the bar. A: Yes, sir.
Indeed, the only evidence offered Q: And you know how to by the government in its attempt to prove get from America’s Bar? that Haywood should have known that the school was within 1000 feet of the bar is A: Yes, sir. the following excerpt from his cross- examination testimony: Q: You know where the Q: But you know where Towers are? America’s Bar is, right? A: Yes, sir. A: Yes, Sir. Q: You know how to get Q: You know where it is? there?
A: Where it is? A: Yes, sir.
Q: Yeah. App. at 360-61. Based on this cross- examination testimony, the government A: It’s by, across the street contends that the “jury could have drawn from Nisky Center. It have the reasonable inference that, since a big sign saying America’s [Haywood] knew the surrounding area of Bar. America’s Bar he knew or should have known the Ulla Muller Elementary Q: And you know it well, School was within 1000 feet of the bar.” right? Government’s Br. at 26. However, we think it shows the opposite. Haywood A: No. I don’t live down on testified that he did not know the area that side. I live in Tutu. well because he lived in a different part of St. Thomas, and the trial testimony
10 can not be fairly interpreted as physical violence to any establishing that he knew the area well; person or property in only that he knew how to get there. furtherance of a plan or Consequently, only rank conjecture purpose to do anything in supports a conclusion that Haywood violation of this section knew or should have known that the bar shall be fined under this title was within 1000 feet of the school. This or imprisoned not more than is particularly true because the twenty years, or both. government never even tried to establish whether all approaches to the bar 18 U.S.C. § 1951. To sustain a conviction necessarily pass the school or whether for interference with commerce by robbery the area is marked as a “school zone.” under § 1951, the government must prove the element of interference with interstate In truth, the only evidence that the or foreign commerce by robbery. See government produced to support this Stirone v. United States, 361 U.S. 212, 218 conviction is that the school is, in fact, (1960). “The charge that interstate within 500 feet of the bar. However, that commerce is affected is critical since the is not sufficiently conclusive to enable a Federal Government’s jurisdiction of this reasonable juror to draw the inference that crime rests only on that interference.” Id. Haywood knew or should have known of However, “[i]f the defendants’ conduct that proximity. Accordingly, there is produces any interference with or effect insufficient evidence to support the upon interstate commerce, whether slight, conviction on Count Seven. Therefore, we subtle or even potential, it is sufficient to will vacate the conviction and remand with uphold a prosecution under [§ 1951].” directions to enter a judgment of acquittal Jund v. Town of Hempstead, 941 F.2d on that Count. 1271, 1285 (2d Cir. 1991). Moreover, “[a] jury may infer that interstate commerce D. Interference with Commerce by was affected to some minimal degree from Robbery. a showing that the business assets were depleted.” United States v. Zeigler, 19 18 U.S.C. § 1951 (Count One) F.3d 486, 493 (10th Cir. 1994). provides: Whoever in any way or The district court’s jury degree obstructs, delays, or instruction on the interference with affects commerce or the commerce by robbery charge provided movement of any article or that commodity in commerce, by if the government proves robbery or extortion or beyond a reasonable doubt attempts or conspires so to that this business purchased do, or commits or threatens goods or services that came
11 from outside St. Heineken and Miller beer sold at the bar. T h o m a s , Virgin Therefore, the jury did not know if Foy’s Islands, and that, testimony about the Heineken and Miller therefore, all or part beer was based on information Foy o f t h e p e rsonal received from Santiago, the bar’s owner, property obtained or if Foy had himself been to the bar at an from this business, earlier time and knew that the products because of the came from the mainland, or if Foy just a l l eg e d r o b b e r y , assumed that the products came from the came from outside mainland. Haywood contends that, at a St. Thomas, Virgin minimum, there must be some independent Islands, then you are evidence, such as a purchasing invoice or instructed that you the testimony of Santiago as to where she may find that the purchased the Heineken and Miller beer in defendants obtained, order to show interference with interstate delayed or affected commerce. commerce as this term is used in these We disagree. In United States v. instructions. Lake, 150 F.3d 269 (3d Cir. 1999), a carjacking case, we held that a Virgin App. 499. Haywood argues that the Islands’ police officer’s testimony was government did not produce sufficient sufficient to establish that the car in evidence to show that the bar purchased question had been transported in goods or services from outside the Virgin interstate or foreign commerce. In Lake, Islands the police officer, a life-long resident of the Virgin Islands, testified that “no However, Detective Foy testified motor vehicles are manufactured in the that America’s Bar is a business Virgin Islands and that all motor vehicles established in the Virgin Islands and that have to be shipped to the islands.” Id. at some products sold at the bar, specifically, 273. Lake argued on appeal that the Heineken beer and Miller beer, come from police officer’s testimony based on his the mainland United States. However, long time residence was not sufficient to Haywood still contends that Detective establish the required commerce element Foy’s testimony is not sufficient to show of the federal carjacking statute, and that that the bar purchased Heineken and there was no foundation for his Miller beer that came from outside the testimony. However, we rejected that Virgin Islands. The linchpin of argument. We took judicial notice of the Haywood’s argument is his claim that Foy small size of the Virgin Islands, and held did not provide a foundation for his that a “police officer and lifelong knowledge regarding the source of the resident of a place of this type has a
12 sufficient basis to testify as to whether Haywood’s conviction on Count One. any motor vehicle manufacturing E. Possession of a Firearm During a facilities are located there.” Id. Crime of Violence. In Count Two Haywood was Here, Officer Foy testified that he convicted of possession of a firearm was assigned to the Safe Streets Task during a crime of violence. The relevant Force and that he investigates violent statute provides: federal crimes as a police officer in that [A]ny person who, during Task Force. Officer Foy also testified that and in relation to any crime he was familiar with America’s Bar. We o f v i o le n c e or dr u g believe that this record is sufficient to trafficking crime (including establish that Officer Foy would have a crime of violence or drug known of any Heineken or Miller tr a f f ic king c rime that breweries in the Virgin Islands. provides for an enhanced Consequently, the evidence was sufficient punishment if committed by to prove the Heineken and M iller beer sold the use of a deadly or at America’s Bar came to the Virgin da nge r ous w e a p o n or Islands from the mainland United States or device) for which the person otherwise traveled in interstate or foreign may be prosecuted in a court commerce. 7 Accordingly, we will affirm of the United States, uses or carries a firearm, or who, in furtherance of any such 7 crime, possesses a firearm, Haywood also argues that there is no shall, in addition to the evidence to support the exercise of federal punishment provided for jurisdiction over what is really a territorial crime. In support of that argument, he cites to United States v. McGuire, 178 F.3d 203 (3d Cir. 1999). There, McGuire Haywood. The federal jurisdictional was convicted of arson of property used in element in § 1951 is that interstate an activity affecting interstate commerce. commerce is affected. Stirone, 361 U.S. at McGuire put a pipe bomb in his mother’s 218. Here, it is clear that interstate car that was used in a local catering comm erce was affected, however business. The government attempted to minimally, because the bar sold Heineken establish the federal jurisdictional element and Miller beer that came from outside the by relying on a bottle of orange juice that Virgin Islands. Moreover, the bar’s assets was in the trunk of the car. However, we were depleted because money was stolen held that the bottle of orange juice was too during the robbery. That is far more inconsequential to support the exercise of consequential than one bottle of orange federal jurisdiction. Id. at 210-212. juice. However, McGuire does not help
13 such c ri m e of the night of the robbery. 8 violence or drug In Trombetta v. California, 467 trafficking crime be U.S. 479, 488 (1984), the Court noted that sentenced to a term “[w]hatever duty the Constitution imposes of imprisonment of on the States to preserve evidence, that not less than 5 years. duty must be limited to evidence that ... might be expected to play a significant role in the suspect’s defense.” In order “[t]o 18 U.S.C. § 924©)(1). He argues here meet this standard of constitutional that because his § 1951 interference with materiality, evidence must both possess an commerce by robbery conviction must be exculpatory value that was apparent before reversed, his § 924(c) possession of a the evidence was destroyed, and be of such firearm during a crime of violence must a nature that the defendant would be also be reversed. He reaches this unable to obtain comparable evidence by conclusion because he claims that the other reasonably available means.” Id. at interference with commerce by robbery 489. conviction is the predicate offense for a conviction under § 924(c). However, this Haywood submits that the lost or argument is without merit because he was destroyed clothing meets the standard for properly convicted under § 1951. constitutional materiality because his case Moreover, a conviction under § 924(c) centered on identification. Thus, the color does not require a conviction on the crime and type of clothing he wore at the time he of violence as a predicate offense. United was arrested was relevant to both the States v. Lake, 150 F.3d at 275. A valid § government and the defense as proof of 924(c) conviction “requires only that the identity. He claims that Charles’s defendant have committed a violent crime identification of him is based on a white T- for which he may be prosecuted in federal shirt that Charles said he was wearing. court. It does not even require that the Ha ywood a llege s the re w as n o crime be charged; a fortiori, it does not overwhelming evidence that he was require that he be convicted.” United States v. Smith, 182 F.3d 452, 457 (6th Cir. 1999) (emphasis in original). 8 The government claims that it neither lost nor destroyed the clothing Haywood F. Lost or Destroyed Evidence. was wearing on the night of the robbery. Haywood claims that the district It notes that Detective Monoson testified court erred by not dismissing the on cross-examination that the clothing had superseding indictment against him been left in a recently condemned police because the government either lost or station and that he was unable to enter the destroyed the clothing he was wearing on building to search for the clothing because of the condemnation.
14 wearing a white T-shirt because Charles processing following his arrest. That was the only person who testified that he photograph was admitted as an exhibit at was wearing a white T-shirt. Haywood trial, but Haywood does not bother to claims that he was wearing different mention it now. He also does not argue clothing. Moreover, he notes that neither that the admission of the photograph was Santiago nor Rodriquez testified that he error. We fail to understand why it was wearing a white T-shirt. Therefore, he makes a difference whether the actual submits that if he had been able to white T-shirt was introduced into introduce the T-Shirt, it would have been evidence or whether a photograph of of significant value in rebutting Charles’s Haywood wearing the white T-shirt was testimony.9 Consequently, he argues the introduced into evidence. Consequently, unavailability of the clothing severely we hold that the district court did not err prejudiced his ability to mount a defense. by not dismissing the superseding indictment against him based on this due We do not see any merit in this process claim. argument. Haywood understandably forgets that he was photographed by the G. Problems with the Interpreter. police wearing a white T-shirt during Haywood’s challenge to the translation of testimony is equally frivolous. At trial, both Santiago and 9 Rodriquez testified with the aid of a Haywood suggests bad faith on the Spanish interpreter. Haywood argues government’s part because the police did that his convictions must be reversed not follow standard procedure in because of a number of problems with preserving the clothing he wore. the interpreter, which he claims violated However, he does not say what standard his Fifth Amendment due process right procedure the police did not follow. In and his Sixth Amendment confrontation United States v. Deaner, 1 F.3d 192 (3d right. He first argues that there is no Cir. 1993), we wrote: “A defendant who evidence in the record that the interpreter claims destroyed evidence might have was certified to translate in federal court, proved exculpatory if it could have been as required by 28 U.S.C. § 1827, or subjected to tests has to show the otherwise determined to be qualified or prosecution’s bad faith in ordering or competent under 28 U.S.C. § 1827(d). permitting its destruction. Without a However, Haywood did not object to the showing of bad faith, failure to preserve district court’s decision to use the evidence that might be of use to a criminal interpreter nor did he raise any issue defendant after testing is not a denial of concerning the interpreter’s certification due process.” Id. at 200 (citations or qualifications in the district court. omitted). Here, there is absolutely no Accordingly, he has waived this issue. evidence that Haywood’s clothing was United States v. Hsu, 155 F.3d 189, 205 purposefully lost or destroyed.
15 (3d Cir. 1998) (citing Harris v. City of vacate the conviction on Count Seven and Philadelphia, 35 F.3d 840, 845 (3d Cir. remand with directions to enter a judgment 1994)). of acquittal.
Haywood’s second argument is that the interpreter improperly summarized the testimony of Santiago and Rodriquez. However, he fails to tell us what testimony the interpreter summarized or why the alleged summary was improper. His third argument is only slightly less fanciful than the prior two. He claims that the interpreter consistently translated testimony in the third person. According to Haywood, translation in the third person resulted in confusion because the translator’s use of the pronouns “she” and “her” referred not only to Santiago and Rodriquez, but also to other female witnesses. In support of his argument he cites to United States v. Gomez, 908 F.2d 809 (11th Cir. 1990). In Gomez, the interpreter improperly equated “disco” with “Elks Lodge,” thereby corroborating a prior witness’s testimony that was favorable to the government. Here, however, there is no claim that the interpretation in the third person corroborated any other testimony, and Haywood fails to provide any concrete examples of confusion. Therefore, Gomez does not help. Accordingly, we do not find any due process violation involving the use of the interpreter.
III. CONCLUSION For all of the above reasons, we will affirm the convictions on Counts One, Two and Four; vacate the conviction on Count Five and remand for a new trial; and