United States v. Trala

• Court: Court of Appeals for the Third Circuit
• Decided: October 26, 2004
• Docket: 02-4524
• Status: Published

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

10-26-2004

USA v. Trala Precedential or Non-Precedential: Precedential

Docket No. 02-4524

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Recommended Citation "USA v. Trala" (2004). 2004 Decisions. Paper 164. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/164

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 704 King Street First Federal Plaza, Suite 110 UNITED STATES COURT OF APPEALS Wilmington, DE 19801 FOR THE THIRD CIRCUIT Attorney for Appellant No: 02-4524 Keith M. Rosen, Esq. (Argued) UNITED STATES OF AMERICA Office of United States Attorney v. 1007 Orange Street, Suite 700 JOHN WALTER TRALA Wilmington, DE 19899 a/k/a Sonny Attorney for the Appellee a/k/a Walter John Trala

JOHN WALTER TRALA, McKEE, Circuit Judge. John Walter Trala appeals his Appellant conviction for bank robbery, conspiracy to commit bank robbery, and use of a firearm Appeal from the United States District during a crime of violence. For the Court reasons below, we will affirm. for the District of Delaware I (Crim. No. 00-cr-00023-1) District Court: Hon. Gregory M. Sleet A.Background of the Robbery Trala’s conviction stems from his Argued: December 15, 2003 participation in the armed robbery of the PNC bank branch in the Eden Square Before: ROTH and M cKEE, Circuit Shopping Center in Bear, Delaware (the Judges, “Bank”). However, events began in the and ROSENN, Senior Circuit Judge. spring of 1999 when the Bank’s head teller, Melissa Bailey, began stealing (Filed October 26, 2004) money from the Bank’s vault to support her husband’s drug habit. App. 1248-51. OPINION By November 1999, Mrs. Bailey had stolen approximately $100,000. App. Penny Marshall, Esq. (Argued) 1250. Office of the Federal Public Defender Around that time, the Bank

1 received $400,000 in cash from the The bank was robbed at Federal Reserve to cover an increase in approximately 8:00 AM on January 14, customer withdraws that was anticipated 2000. App. 1031-33. As planned, Mrs. as a result of the “Y2K” computer scare. Bailey was present, as was Bank manager, App. 1251-52, 1254. Mrs. Bailey, as head Brian Warnock. Id. Another Bank teller, teller, had sole responsibility for these Lillian Foley, arrived while the robbery funds, which were kept in a separate safe was in progress. App. 1053. After the inside the Bank’s vault. App. 1252. The robber fled, Foley drove to a nearby store influx of Y2K funds afforded Bailey an and asked someone to call the police. opportunity to replace the $100,000 she App. 1056-57. When Delaware police had stolen from the Bank. However, arrived, an officer found a red sweatshirt Bailey knew that any shortfall in the Y2K and black knit cap on a sidewalk near the funds would eventually be discovered Bank. Those garments matched the Bank because those funds had to be returned to employees’ descriptions of the garments the Federal Reserve on January 19, 2000. worn by the robber. App. 1073.2 Warnock App. 1255-56. and Foley described the robber as 5’6”- 5’9,” 150-160 pounds, 3 and wearing a red Mrs. Bailey’s husband, Philip hooded sweatshirt. App. 1033, 1054. Bailey, operated a concrete business where Warnock also indicated that the perpetrator Trala worked as a concrete finisher. App. was wearing a dark stocking cap and 1119. In the fall of 1999, Mrs. Bailey and sunglasses. See App. 1033. When Trala began discussing the possibility of questioned, Mrs. Bailey denied any robbing the Bank to create an explanation involvement in the robbery and indicated for the missing Y2K funds. The robbery that $400,000 had been stolen from the would account for any shortfall in the Y2K vault. App. 1274-75. funds, thereby preventing the detection of Mrs. Bailey’s prior embezzlement when Mr. Bailey was sick at home on the those funds were returned to the Federal morning of the robbery. App. 1143. He Reserve. App. 1136-37, 1258-59. Mrs. testified at Trala’s trial that Trala came Bailey informed Trala about the “Y2K” into Mr. Bailey’s room the morning of the funds, told him where the money was robbery, pulled money out of a brown located, and informed him that she would have to be present during the robbery they were planning because she was the only 2 Trala admitted at trial that the red person with the second half of the sweatshirt was his, and that he owned a combination to the vault. App. 1259-60.1 number of black knit caps like the one found B. The Robbery near the scene of the robbery. App. 1762. 3 During a routine processing interview, 1 Any other Bank employee would have Trala stated that he was approximately 5’8” the first half of the combination. App. 1259. and 155 pounds. App. 1564.

2 paper bag, and asked Bailey how much he driver’s license, Officer Guthrie asked him wanted. App. 1144-45. Bailey further for his name and date of birth. Trala testified that Trala told him that he would replied that his name was “Natt Albert put the money in Mr. Bailey’s shop. Id.4 Allen, Jr.” App. 1441. Prince also told Later that day, Trala returned home to Officer Guthrie that Trala’s name was Elkton, Maryland and paid his landlord for “Natt Allen, Jr.” App. 1449. In speaking two weeks’ rent. He paid in $100 bills, with the Officer, Trala stated that he had which the landlord testified was unusual. over $10,000 in cash in the car, and said it App. 1104-05. Trala then left Maryland was proceeds from a recent property deal. and drove to North Carolina with his App. 1444. girlfriend, Vicky Prince, and her daughter. When Sergeant Felicia Long App. 1776-77. arrived on the scene, she spoke to Trala at On February 10, 2000, Mrs. Bailey the “rear of the vehicle” and he repeated was interviewed by an FBI agent and what he had just told Officer Guthrie. confessed her involvement in the Bank App. 1963-64. Sgt. Long then spoke to robbery, as well as the 1999 thefts. App. Prince “at the front of the vehicle.” Prince 1360-61. initially identified herself as “Michele Trala,” but later said that her name was C.Trala’s Arrest in North actually Vicky Prince. App. 1465, 1470. Carolina When asked about the cash, Prince initially On the morning of February 10, stated that the money came from “working 2000, Moorehead City, North Carolina and saving.” App. 1468. When asked the Patrol Officer, Timothy Guthrie, stopped a same question later in the conversation, 1990 Ford Taurus. Trala was driving and she stated that Trala “won it at the races in Prince was a passenger. App. 1440, 1464- Delaware.” App. 1970. However, Prince 70. When Trala could not produce a changed her story after police told her that there would be a record of any winnings at the race track. Prince then said that Trala 4 Trala had a different version of the events “won the money at the slots.” App. 1471. that took place on the day of the robbery. He testified that he showed up for work that Prince and Trala were placed under morning, but found the shop empty. App. arrest and police eventually searched the 1766. While he was cleaning towels, Mr. car where they found $35,123 in cash. Bailey arrived and went into the office area of App. 1487-89. Trala was subsequently the shop. App. 1766-67. When Trala finished turned over to federal authorities in his work, he went into the office and noticed Delaware and charged with: (1) bank that Mr. Bailey had a large amount of cash. robbery in violation of 18 U.S.C. §§ App. 1767. When he questioned Mr. Bailey 2113(a) and (d), and 2 (Count I); (2) about the money, Mr. Bailey gave him conspiracy to commit bank robbery in approximately $30,000 dollars and told him to violation of 18 U.S.C. § 371 (Count II); stay quiet about what he had seen. Id.

3 and (3) use of a firearm during a crime of matched Trala’s DNA to a reasonable violence in violation of 18 U.S.C. § degree of scientific certainty. App. 1640. 924(c)(1) (Count III). App. 36-38.5 Prior to trial, Trala filed a motion in D.DNA and Trace Evidence limine challenging the admissibility of the DNA evidence. He argued that the The sweatshirt and knit cap that evidence should be excluded because police found just outside the Bank were PCR/STR typing, as applied to mixed sent to the FBI laboratory in Washington, DNA samples, did not satisfy the standard D.C. App. 1498-99. FBI agents also for scientific reliability under Federal Rule collected hair and saliva samples from of Evidence 702 or Daubert v. Merrell Trala and took carpet samples from his Dow Pharmaceuticals, Inc., 509 U.S. 579 motel home. App. 1492-93, 1504-05. (1993). After conducting a three-day These samples were sent to the FBI evidentiary hearing, the district court laboratory for comparison with the issued a well reasoned and comprehensive samples from the sweatshirt and knit cap. opinion explaining its conclusion that the App. 1493-94, 1506. expert testimony was admissible. Forensic examination determined E.Jury Deliberations that the hairs taken from the garments e x h i b i te d th e s a m e m i c r o s co p ic The trial began on Monday, characteristics as the hairs taken from November 26, 2001. App. 899. By Trala and the fibers taken from his carpet. Friday, November 30, both sides had App. 1591-92. The FBI laboratory also rested, and the jury began deliberations at compared DNA taken from hairs on the approximately 1:00 PM. App. 1919. The knit cap found near the Bank following the first day of deliberations ended at 4:30 PM robbery with DNA taken from Trala’s due to a juror’s previously scheduled saliva sample. The forensic examiner used weekend trip. App. 1919, 1931-3. The a method of DNA typing known as following Mon day, Decem ber 3 , “PCR/STR” typing. App. 1630, 1633. deliberations did not beg in until The results revealed that the sample taken approximately 1:00 PM because the same from the knit cap was mixed, i.e., it juror was late returning from her trip. contained DNA from more than one App. 1966. Shortly after 5:00 PM on the person. App. 1639-40. The examiner second day of deliberations, the court determined, however, that there was a asked the deputy clerk to find out if the clear majority contributor to the sample, jurors wanted to order dinner and continue and that the DNA of the major contributor their deliberations. App. 1965. The jury responded with the following question: “The jury wants to know if they can’t 5 In addition to these three counts, Mrs. come to [a] unanimous decision, and this Bailey was charged with embezzlement in is before they decide about dinner, is it violation of 18 U.S.C. § 656. App. 38.

4 over or will they have to come back?” Id. not answering their question.

The following exchange then took THE COURT:I feel like we’re place between the court and defense answering their question. If they have a counsel: further question to the Court’s response, THE COURT:[M]y inclination at we’ll respond at that time. this time at 5:05 is to advise the jury that we’re prepared to order dinner. App. 1966-67. When informed of the ... court’s response, the jurors decided to order dinner. At approximately 8:00 PM, they returned with a verdict finding Trala [DEFENSE COUNSEL]: Your guilty on all charges.6 App. 1967, 1969- Honor, the difficulty is that [this] is some 72. expression of . . . possibly not being able to reach a verdict. This appeal followed. II THE COURT:The jury hasn’t A. Expert Testimony Relating to deliberated long enough to even be close PCR/STR DNA Typing to that point. They didn’t commence their Trala’s primary argument is that the deliberations until 1:00 o’clock today. district court erred by admitting DNA They didn’t start their deliberations until evidence linking him to the knit cap found 1:00 o’clock on the day that they got the near the scene of the robbery. He argues case . . . . that PCR/STR DNA typing does not meet the standard for scientific reliability under Federal Rule of Evidence 702 and Daubert [DEFENSE COUNSEL]:Here is when applied to mixed DNA samples. my problem, your Honor. If they asked the “We review the decision to admit or reject question and we give no response to it one expert testimony under an abuse of way or the other, then we put them in a discretion standard.” Schneider ex rel. position. Estate of Schneider v. Fried, 320 F.3d 396,

THE COURT:Of ordering dinner and continuing their deliberations. 6 Trala was eventually sentenced to a total of 322 months imprisonment, five years of supervised release, a $300 special assessment, [DEFENSE COUNSEL]:But we’re and restitution in the amount of $144,457. App. 1974-80.

5 404 (3d Cir. 2003).7 rests on a reliable foundation and is relevant to the task at hand.” Id. at 597. In After careful examination of the light of this, we note that the district record, we conclude that there was no court’s painstaking opinion provides a abuse of discretion. We hold that the thorough and compelling analysis of the PCR/STR DNA typing utilized in this case court’s rejection of Trala’s challenges to does in fact meet the standards for the DNA evidence. We conclude that the reliability and admissibility set forth in court did not abuse its discretion in Federal Rule of Evidence 702 and admitting the DNA evidence substantially Daubert. In Daubert, the U.S. Supreme for the reasons Judge Sleet sets forth in his Court interpreted and applied Rule 702, opinion. See 162 F. Supp. 2d 336 (D. Del. which replaced the common law rule 2001). requiring “general acceptance” for the admissibility of scientific evidence with aB. The Jury’s Question about Continuing standard requiring an “assessment of Deliberations whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or Trala also argues that the district methodology properly can be applied to court coerced the jury into reaching a the facts in issue.” Daubert v. Merrell Dow verdict by giving them a “non-responsive Pharmaceuticals, 509 U.S. at 586, 592-3. directive to order dinner” in response to The Court held that “the Rules of their inquiry about whether they would Evidence—especially Rule 702 —do have to continue deliberations the assign to the trial judge the task of following day if they were deadlocked. ensuring that an expert’s testimony both Br. at 35 (internal quotation marks omitted). He argues that “[a] reasonable impression was given to the jurors that 7 Trala suggests that we should apply the they needed to stay until they reached a plenary standard of review to the district verdict, no matter how long that took.” Id. court’s “interpretation of Rule 702’s application to DNA evidence.” Br. at 64. Although a district court may not However, the court did not interpret Rule 702; coerce a jury into reaching a unanimous it merely applied the rule in accordance with verdict, it is well-established that it has Supreme Court and Third Circuit precedent. broad discretion to determine how long Compare Elcock v. Kmart Corp., 233 F.3d jury deliberations should continue. See, 734, 745 (3d Cir. 2000) (exercising plenary e.g., Govt. of V.I. v. Gereau, 502 F.2d 914, review of the district court’s decision not to 935-36 (3d Cir. 1974). Thus, “[a]bsent conduct a Daubert hearing, but noting that we peculiar evidence indicative of coercion, it “ordinarily review a district court’s is proper for a judge to instruct a application of Rule 702, as well as the deadlocked jury to continue deliberations decision whether to grant a Daubert hearing, and attempt to arrive at a verdict.” Id.; see for abuse of discretion . . . ”).

6 also United States v. Grosso, 358 F.2d a matter within the discretion of the trial 154, 159 (3d Cir. 1966), overruled on judge, and his action in requiring further other grounds, 390 U.S. 62 (1968). In deliberation after the jury has reported a Gereau, we affirmed a guilty verdict disagreement does not, without more, where the jurors were instructed to constitute coercion.” Id. at 160; compare continue deliberations for at least one U.S. v. Fioravanti, 412 F.2d 407 (3d Cir. more afternoon after they had already 1969) (holding that the Allen charge, deliberated for nearly 40 hours. Despite where the court instructs jurors in the the length of the deliberations, we found minority to question their own judgment in that there “was no threat that the jury light of the contrary view held by the would be locked up indefinitely unless a majority, was coercive). verdict was reached . . . .” Id. at 936; Here, the court did not require the compare Jenkins v. U. S., 380 U.S. 445, jurors to stay and order dinner as Trala 446 (1965) (per curiam) (finding coercion suggests. Rather, the judge gave jurors the where, after two hours of deliberations, the option of ordering dinner and continuing court told a deadlocked jury: “You have their deliberations into the evening. App. got to reach a decision in this case.”) 1965 (“I’ve asked our courtroom deputy to (internal quotation marks omitted). find out if the jury wants to order dinner. Our decision in Gereau was based They’re discussing it.”). The jury then in part on the fact that the court there responded with the following question: advised the jury that it did not have to “[I]f they can’t come to [a] unanimous reach a unanimous verdict. Id. However, decision, and this is before they decide such an instruction is not required unless about dinner, is it over or will they have to there is some evidence of coercion. come back?” App. 1965. After a brief United States v. Price, 13 F.3d 711, 725 discussion with defense counsel, the court (3d Cir. 1994) (“The mere absence of . . . simply reiterated that it was “prepared to an instruction [that the jury can return a order dinner.” App. 1966. At that point, hung verdict] does not in and of itself the jury, which had only deliberated for suggest coercion.”). Nor does the court four hours that day (and a total of seven have to set a particular time limit on and a half hours), chose to order dinner deliberations, even after the jury has and continue deliberations. App. 1966-67. expressed that it is hopelessly deadlocked. Three hours later, they reached a verdict. In Grosso, for instance, we affirmed a This does not suggest a “threat that the guilty verdict where the court simply jury would be locked up indefinitely unless instructed a deadlocked jury to “keep on a verdict was reached, nor was there any working.” 358 F.2d at 159 (internal indication that jurors should doubt the quotation marks omitted). We held that judg men ts t h e y h a d a r r iv e d a t “[t]he length of time a jury may be kept independently.” Gereau, 502 F.2d at 936. together for the purpose of deliberation is The court merely implied that it was not

7 convinced of a deadlocked jury after only 124 S.Ct. 1354 (2004): seven and a half hours of deliberations. This was a proper exercise of the court’s discretion. Leaving the regulation of out-of-court statements to C.Prince’s Statements to Sgt. the law of evidence would Long render the Confrontation Finally, Trala argues that the court Clause powerless to prevent erred in admitting Prince’s conflicting even the most flagrant statements to Sgt. Long regarding her inquisitorial practices. . . . identity, and the source of money in his Where testimonial car. He challenges Long’s testimony that statements are involved, we Prince said: (1) that her name was do not think the Framers “Michele Trala”; (2) that her name was meant to leave the Sixth actually Vicky Prince; (3) that the money Amendment's protection to in the car was from working and saving; the vagaries of the rules of (4) that Trala won the money at the evidence, much less to racetrack; and (5) that he won the money amorphous notions of playing slot machines. See App. 1465-71. "reliability." 124 S.Ct. at Trala argues that the admission of these 1364, 1370. statements violated the Confrontation Clause of the Sixth Amendment and Federal Rule of Evidence 402. We will We exercise plenary review over address each of these arguments in turn. Confrontation Clause challenges. United States v. Mitchell, 145 F.3d 572, 576 (3d 1.Th e Confronta tion Cir. 1998).8 Clause The right of cross-examination is Trala concedes that Prince’s secured by the Confrontation Clause. statements were not hearsay because they Crawford v. Washington, 124 S.Ct. at were not offered to prove the truth of the 1357; see also Douglas v. Alabama, 380 matter asserted. See Fed. R. Evid. 801(c). U.S. 415, 418 (1965). In Crawford, the Rather, the statements were offered in an Court held that witnesses’ out-of-court attempt to establish Trala’s consciousness of guilt. App. 1466. Yet this does not end 8 our inquiry under the Confrontation Clause The government argues that Trala did not of the Sixth Amendment. As the Supreme preserve his Confrontation Clause claim at Court noted recently in Crawford v. trial. We disagree. At trial, defense counsel Washington, specifically objected to Sgt. Long’s testimony regarding Prince’s statements during the traffic stop on grounds that it violated the Confrontation Clause. App. 1466-67.

8 statements that are testimonial are barred of the statement. Id. After he was by the Confrontation Clause, regardless of convicted, the defendant challenged the determinations of reliability, unless the admission of the confession on grounds witnesses are unavailable and the that it violated the Confrontation Clause. defendant has had a prior opportunity for The Supreme Court held that “[t]he cross-examination. Though Crawford Clause’s fundamental role in protecting the bears generally on the present case because right of cross-examination . . . was the evidence in question is testimonial satisfied by [the Sheriff’s] presence on the (“[s]tatements taken by police officers in stand.” Id. at 414. It further noted that the course of interrogations are also “[i]f [the defendant’s] counsel doubted testimonial under ev en a narro w that [the] confession was accurately standard”), its principles are not recounted, he was free to cross-examine contravened because the reliability of the Sheriff . . . .” Id. The Court Prince’s out of court statements is not at acknowledged the possibility that the jury issue here. Crawford v. Washington, 124 might improperly consider the truthfulness S.Ct. at 1364. Crawford restates the of the confession, as in Bruton v. United constitutional requirement of cross- States, 391 U.S. 123 (1968), despite the examination, or confrontation, as the district court’s instruction to the contrary. primary—and indeed, the Id.9 Nevertheless, despite its Bruton necessary—means of establishing the concerns, the Court found that the reliability of testimonial evidence. “Where probative value of the confession testimonial statements are at issue, the only outweighed the possibility of misuse, and indicium of reliability sufficient to satisfy that “there were no alternatives that would constitutional demands is the one the have both assured the integrity of the C o n s t i t u ti o n a c t u al l y p r e s c ri b e s: trial’s truth-seeking function and confrontation.” Id. at 1374. eliminated the risk of the jury’s improper Crawford does not apply where the reliability of testimonial evidence is not at issue, and a defendant’s right of confrontation may be satisfied even though the declarant does not testify. For 9 example, in Tennessee v. Street, 471 U.S. In Bruton, the Court reversed the 409, 411-12 (1985), the confession of a defendant’s conviction based on the admission co-conspirator was read into the record of a co-defendant’s confession, despite the during defendant’s murder trial. It was fact that the court instructed the jury “that introduced through the sheriff who had although [the co-defendant’s] confession was obtained it and it was admitted solely to competent evidence against [him] it was rebut the defendant’s testimony. Id. inadmissible hearsay against [defendant] and therefore had to be disregarded in determining Significantly, the jury was specifically [defendant’s] guilt or innocence. 391 U.S. at instructed not to consider the truthfulness 125.

9 use of evidence.” Id. at 414-416.10 existence of any fact that is of Although the court here did not consequence to the determination of the expressly caution the jury against action more probable or less probable than considering the truthfulness of Prince’s it would be without the evidence.”). The statements, it is clear that no such warning district court found that Prince’s was required because, unlike the situation statements were relevant to show Trala’s in Street, there was absolutely no risk that consciousness of guilt under United States the jury would mistakenly assume the truth v. Palma-Ruedas, 121 F.3d 841 (3d Cir. of Prince’s statements. In fact, the 1997), overruled on other grounds, United statements were admitted because they States v. Rodriguez-Moreno, 526 U.S. 275 were so obviously false. They established (1999). App. 1466. Our review of the that Prince was lying to the police about court’s interpretation of Rule 402 is her identity, as well as the source of the plenary. Mitchell, 145 F.3d at 576.11 money in Trala’s car. Moreover, Trala’s In Palma-Ruedas, a detective came testimony was not to the contrary. Even he to the house where the defendant was testified that Prince’s name was not located and a woman named Alvarez “Michele Trala,” and that the money did answered the door along with defendant, not come from savings, the racetrack, or whose actual name was Omar Torres- playing slot machines. See App. 1767, Montalvo. Id. at 856. At trial, the 1771. Furthermore, Sgt. Long was detective testified that Alvarez told him available for cross-examination, so defense that Montalvo’s name was “Carlos counsel therefore had an opportunity to Torres.” We held that the statement was question her account of the conversation not being introduced to prove the truth of with Prince. Under these circumstances, the matter asserted, but rather to “show we find that Trala’s rights under the consciousness of guilt . . . .” Id. We Confrontation Clause were satisfied. 2.Federal Rule of Evidence 11 The government also argues that Trala 402 did not properly preserve his relevance Trala also challenges the relevancy objection at trial. However, defense counsel of Prince’s statements under Federal Rule raised a relevance objection when the of Evidence 402 (“Evidence which is not government attempted to elicit similar relevant is not admissible.”); see also Fed. testimony from Officer Guthrie, but was R. Evid. 401 (“‘Relevant evidence’ means overruled by the court. App. 1445-1448. In a evidence having any tendency to make the subsequent sidebar conference to discuss defense counsel’s objections to Sgt. Long’s testimony regarding Prince’s statements 10 In United States v. Inadi, 475 U.S. 387, during the stop, the court stated that it was 394 n.5 (1986), the Supreme Court cites “not going to allow [defense counsel] to Green for the proposition that there is not a reargue . . . the same objection.” App. 1466. complete overlap between hearsay rules and Therefore, the issue of relevance was properly the Confrontation Clause. preserved at trial.

10 explained: admitted.12 However, as we explain Even though M ontalvo did below, we also conclude that the error was not offer the information harmless. himself, he allowed Alvarez There was an overwhelming to offer the false statement amount of objective evidence linking Trala without correcting her. The to the robbery, including: (1) the similarity s t a te m e n t w a s t h us between his build and the description of p r o b a t iv e regard in g the robber; (2) his admission that he cons ciousness of g uilt owned the sweatshirt found near the scene because the jury could have of the robbery; (3) his admission that he reasonably inferred that also owned a number of black knit caps M o n t a lvo w e lc o m ed like the one found near the scene of the Alvarez’s misidentification robbery; (4) the DNA evidence linking of him. him to the garments found near the scene of the crime; (5) Mrs. Bailey’s testimony Id. Here, however, Sgt. Long testified that regarding her discussions with Trala about she questioned Prince at “the front of the robbing the bank and the location of the vehicle” after she questioned Trala near Y2K funds; (6) her testimony that she “the rear of the vehicle.” (App. 1463, recognized Trala during the course of the 1465). Trala and Prince were therefore robbery, including the red sweatshirt that separated by at least a car-length when she he wore; (7) Mr. Bailey’s testimony that he made the comments. In Palma-Ruedas, saw Trala on the morning of the robbery Montalvo was standing next to the with a brown paper bag full of money; 13 declarant when she falsely identified him. and (8) the unexplained cash in Trala’s Without more than was developed on this car. In addition, Trala himself lied to record about the respective positions of police about his name and the source of Trala and Prince when Prince made the the money in his car, and those statements challenged statements, the jury could only were clearly relevant and admissible. See speculate as to whether Trala heard Prince so that he could have corrected Prince’s 12 misstatements. Absent such additional Because we find that the admission of evidence tying Trala to Prin ce’s Prince’s statements constituted legal error, we statements, her statement regarding Trala’s need not consider Trala’s additional challenge identity was not relevant to show Trala’s under Federal Rule of Evidence 403. consciousness of guilt. Because the evidence was not relevant for any other 13 This is consistent with eyewitnesses purpose, we find that it was improperly who said the robber put the stolen money in a paper bag, and who saw the robber leave the bank carrying a brown paper bag. App. 1036, 1054, 1272.

11 United States v. Levy, 865 F.2d 551, 558 requires a new trial.14 (3d. Cir. 1989) (en banc) (“[D]efendants’ III attempt to conceal their true identities by For the reasons set forth herein, we providing aliases to the police upon arrest will affirm Trala’s judgment of conviction is relevant as consciousness of guilt.”). and sentence.15 Thus, Prince’s statements about his name and the source of the funds added little if 14 anything to the evidence against him. In fact, given the additional evidence of It is also significant that Prince and Trala’s guilt, the prosecutor’s insistence on Trala both independently told Officer admitting what Prince said at the rear of the car was nothing more than “gilding the lily.” Guthrie that Trala’s name was “Nate Allen, Jr.” App. 1449. Although it is also 15 After this matter was submitted, Trala unclear from the record whether Prince filed a Motion for Leave to File Supplemental was near Trala when she made this Briefing in Light of Blakely v. Washington, statement, this is still relevant to show 124 S.Ct. 2531 (2004). In it he first argues consciousness of guilt. The jury could that the Career Offender Enhancement that he reasonably infer that Trala and Prince received “requires a district court’s findings as agreed to lie about Trala’s true identity, to both the nature of the instant offense and and that they did so to help him avoid prior convictions, i.e., whether such apprehension. This is much stronger convictions qualify as crimes of violence.” evidence of consciousness of guilt than in See U.S.S.G. § 4B1.1 (“A defendant is a Levy, where we held that “the use of false career offender if [inter alia] the instant identities by all three conspirators . . . offense of conviction is a felony that is either a crime of violence or a controlled substance tended to show joint planning and offense [and] the defendant has at least two coordination by the defendants in an prior felony convictions of either a crime of attempt to protect themselves from future violence or a controlled substance offense.”). investigation and pursuit.” 865 F.2d at However, whether an offense is a “crime of 558. Under the facts of Levy, it was violence or a controlled substance offense” is possible that the use of false names by all a legal determination, which does not raise an three defendants was merely coincidence. issue of fact under Blakely or Apprendi v. New Here, there is no question that the parties Jersey, 530 U.S. 466 (2000). agreed beforehand that they would refer to Trala also challenges the district court’s Trala as “Natt Allen, Jr.” Thus, even order of restitution. 18 U.S.C. § 3664(e), though Prince’s statements to Sgt. Long provides: “Any dispute as to the proper were inadmissible, the jury heard similar, amount or type of restitution shall be resolved a d m i s s i b l e e v i d e n c e o f T r a l a ’s by the court by the preponderance of the consciousness of guilt. There is therefore evidence.” However, Blakely and Apprendi no merit to Tala’s claim that this error apply only where there is a resolution of disputed issues of fact that results in a sentencing enhancement beyond the statutory maximum. See Blakely, 124 S.Ct. at 2537

12 (“Our precedents make clear, however, that the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (citations omitted). Here, there was no contested evidence about the amount of money that was taken. Therefore, the amount of restitution was not a disputed issue of fact under Blakely.