United States v. Willie Elmore

548 F. App'x 832
CourtCourt of Appeals for the Third Circuit
DecidedDecember 18, 2013
Docket13-1427
StatusUnpublished

This text of 548 F. App'x 832 (United States v. Willie Elmore) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Willie Elmore, 548 F. App'x 832 (3d Cir. 2013).

Opinion

OPINION

VANASKIE, Circuit Judge.

Appellant Willie Elmore appeals his conviction and sentence on charges arising out of an armed bank robbery. Elmore raises several issues: (1) whether Fed.R.Crim.P. 16(a)(1)(A) required pretrial disclosure of Elmore’s non-verbal actions during an interrogation by a law enforcement agent; (2) whether the District Court erred in denying his motions to suppress evidence; (3) whether the District Court incorrectly assigned him criminal history points for a prior conviction; and (4) whether the District Court incorrectly assigned him an enhancement for obstruction of justice. Concluding that the District Court did not err in any of the ways argued by Elmore, we will affirm.

*834 I.

We write primarily for the parties to this action, who are familiar with the facts and procedural history of this case. Accordingly, we set forth only those facts necessary to our analysis.

On September 16, 2011, two masked men robbed the Fulton Bank located in Etters, PA. The men took $13,761 in cash, including ten $20 bills for which the bank had recorded the serial numbers. 1

Upon entering the bank parking lot at the time of the robbery, eyewitness Susan Stabley observed a black Chevrolet Blazer that was parked “at a very strange place,” outside of any parking space. (App.84). Stabley saw a masked man exit the vehicle and enter the bank, at which point she suspected a robbery was in progress. Stabley left the bank parking lot and drove to a nearby Rutter’s Farm Store parking lot, intending to write down the partial Pennsylvania license plate number she had seen displayed on the vehicle. Stabley then observed a black Chevrolet Blazer drive by her into the Rutter’s parking lot. Although it now displayed a North Carolina license plate with a different number, Stabley was certain this was the same Blazer she had seen at the bank, as it was an old vehicle of a make that she had rarely seen in the area. Stabley recorded this plate number before returning to the bank to report the information to the police officers, who had already arrived on the scene.

The officers put out a county-wide bulletin for a vehicle matching the description Stabley had provided. Police stopped El-more an hour and a half later after observing him driving a black Chevrolet Blazer sporting the North Carolina license plates within 15 miles of the bank. Elmore was immediately arrested and patted down. Officers recovered $510 in Elmore’s pocket, including six bills that matched the “bait money” that had been taken during the robbery. Officers also observed cash laying in plain view on the passenger seat of Elmore’s vehicle.

Based on the above information, the officers sought and obtained a search warrant for the Blazer, which was executed later that day. Inside the car, officers found $1,510 and a Motorola Droid cellular phone. Officers sought and obtained a search warrant for the phone found in the vehicle, which was executed on September 22, 2011. Officers also obtained warrants to search the records of both the Droid phone found in the car as well as another number that the Droid had dialed and received calls from around the time of the robbery. These warrants were executed on September 22, 2011 and September 28, 2011, respectively.

Tristan Green was arrested independently of Elmore in connection with the robbery. On December 20, 2011, Elmore and Green were indicted on charges of armed bank robbery in violation of 18 U.S.C. §§ 2113(a), (d), and 2, and use of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A). They were tried together.

Prior to trial, the District Court denied Elmore’s motion to suppress the evidence found in his vehicle. During the trial, the court admitted testimony by FBI Agent Christopher Nawrocki about his interrogation of Elmore on the day of the robbery. Nawrocki testified that Elmore repeatedly denied involvement in the robbery, stating “I didn’t rob no bank” in response to questions about the bait money that had been found in his possession. (App.149). Naw- *835 rocki noted, however, that Elmore “looked away” when shown a photograph of Green and “snapped” his head towards Nawrocki “very quickly” after Nawrocki mentioned Green’s name. (App.149,162).

After a four-day jury trial, Elmore and Green were each found guilty of both counts. On February 14, 2013, Elmore was sentenced to 168 months’ imprisonment.

II.

The District Court had jurisdiction under 18 U.S.C. § 3231, and we have appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

A. Admission of Agent Nawrocki’s Testimony on Elmore’s Non-Verbal Reactions

Elmore first contests the District Court’s admission of Agent Nawrocki’s testimony about Elmore’s non-verbal actions during an interrogation, arguing that those actions constituted “statement[s]” the prosecution was required to disclose to him prior to trial pursuant to Fed. R.Crim.P. 16(a)(1)(A). That rule mandates that “[ujpon a defendant’s request, the government must disclose to the defendant the substance of any relevant oral statement made by the defendant, before or after arrest, in response to interrogation by a person the defendant knew was a government agent if the government intends to use the statement at trial.” Fed. R.Crim.P. 16(a)(1) (emphasis added)

Although by its own language Rule 16(a)(1)(A) only applies to “oral statement[s],” Elmore argues that in other contexts—such as hearsay law—non-verbal conduct is sometimes recognized as a “statement.” Even accepting arguendo Elmore’s contention that the term “oral statement” in Fed.R.Crim.P. 16(a)(1)(A) should be interpreted analogously to the term “statement” in the Federal Rules of Evidence, the conduct at issue here plainly does not qualify. Rule 801(a) of the Federal Rules of Evidence defines a “statement” as “a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.” We agree with the District Court that El-more’s movements, as described by Agent Nawrocki at trial, were “involuntary reaction^] to a question, certainly not intended as an assertion.” (App.160).

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548 F. App'x 832, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-willie-elmore-ca3-2013.