United States v. Robinson , 322 F. App'x 105 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
4-9-2009
USA v. Robinson
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4557
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-4557
UNITED STATES OF AMERICA
v.
GREGORY ROBINSON,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 06-cr-00604-1)
D.C. Judge: Honorable Michael M. Baylson
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 26, 2009
Before: SCIRICA, Chief Judge, AMBRO and SMITH, Circuit Judges.
(Filed: April 9, 2009)
OPINION OF THE COURT
SCIRICA, Chief Judge.
Gregory Robinson was convicted of Hobbs Act robbery, 18 U.S.C. § 1951, of the
Wishing Well Market in Philadelphia; of carrying a firearm during and in relation to a
crime of violence, § 924(c)(1); and of possession of a firearm by a convicted felon,
§§ 922(g)(1), 924(e). He was sentenced to a mandatory life term in prison, an additional
eighty-four month prison term, restitution, and a special assessment. Robinson challenges
the convictions and his sentence.
At trial, the government presented evidence, including eyewitness testimony, that
Robinson, armed with a revolver, had robbed the Wishing Well Market, fled, and was
apprehended nearby after shooting at a Philadelphia police officer. Two Wishing Well
employees—Arthur Berg and former owner Michael Wishing—both eyewitnesses,
recounted the robbery in their trial testimony. Berg was working in between two
cashier’s booths at the front of the store when he saw Robinson in the store, about fifteen
feet away from him, armed with a silver revolver. Robinson walked toward an office
located inside the store, also near the front. As Robinson was about to enter the office, he
turned to face Berg, who got an unobstructed look at him, including a good look at his
face. He spoke directly to Berg, commanding him to stay where he was. Robinson then
entered the office, taking Michael Wishing, who had been working at a desk there, by
surprise. Robinson pushed Wishing, pointed a gun into his neck, and demanded he take
money from the store safe—approximately $700—and place it into a red bag. “[G]ive me
the money or I’ll blow your f’ing head off,” Robinson commanded, and while Wishing
was filling the bag, Robinson ordered Berg to stay put: “[D]on’t move or I’ll shoot this
M.F.” (J.A. 49, 69.) After Wishing had placed the money in the bag, Robinson walked
out of the store, placing the gun in his pants.
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In addition to identifying Robinson as the robber in court, Berg identified the red
bag and some clothing—a jacket and a hat—as items carried and worn by Robinson in the
store. And he identified the gun used in the robbery. The clothing, bag, and gun Berg
identified at trial were all items recovered from Robinson when he was apprehended.
Michael Wishing testified he did not see the robber clearly because he was focused
intently on the gun pointed directly at him—so intently that he could see bullets in the
gun’s chambers. Wishing identified both the gun and the red bag as those used in the
robbery. A third employee, Tyrone Fortune, testified that he ran away down a store aisle
to call 911 as soon as he saw the tip of a gun. He saw the robber only momentarily, and
only from behind.
Immediately after the robbery, Berg ran outside and flagged down Lieutenant
George Kappe of the Philadelphia Police Department. Berg gave Kappe a description of
the robber, noted the robber was armed, and rode in Kappe’s police car looking for the
man. Soon, they found Robinson walking on Mount Vernon Street, not far from the
Wishing Well Market. Berg identified Robinson as the robber, and Kappe exited his
police car with his gun drawn, identifying himself as a police officer.
Kappe and Berg’s testimony detailed the gunfight that ensued. Robinson turned,
put down the red bag, removed the gun from his pants, and—holding the gun underneath
the jacket he was carrying—fired two shots at Kappe. Kappe returned fire, and Robinson
ran across the street, taking position behind a parked car. Kappe followed, but he slipped
and fell as he approached the car. Robinson attacked. “I got you now, mother fucker,”
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Robinson said just before firing again at Kappe. (J.A. 137.) Kappe fired back, deterring
Robinson’s attack, and Robinson fled down the street. Kappe called for assistance, then
pursued on foot.
During the pursuit, Robinson pointed his gun back at Kappe a third time,
prompting Kappe to fire yet again. Robinson ran into an abandoned lot, but was fenced in
and had to return to the street. “Shoot me, motherfucker,” he demanded, pointing his gun
at Kappe, who had caught up and taken a position behind another car. (J.A. 152.) Other
officers then arrived at the scene, and one of those officers shot at Robinson before
Robinson finally gave up his weapon and was arrested. Robinson had been shot twice,
and he was taken to the hospital.
Supported by Kappe and Berg’s testimony, the government contended Robinson
fired first, revealing his consciousness of guilt. This was evidence, in addition to the in-
court identifications, upon which the jury could link Robinson to the robbery. Robinson’s
lawyers—he did not testify in his own defense—contended he did not commit the
robbery. But significantly, Robinson does not challenge the legality of Berg’s eyewitness
identification of him as the robber. This is telling because Berg’s identification was the
strongest evidence against him. Instead, the crux of his appeal centers on the
consciousness-of-guilt theory. He contends errors involving the consciousness-of-guilt
argument were not harmless because of confusion or inconsistencies in the testimony of
two of the Wishing Well employees. Michael Wishing and Tyrone Fortune had
misidentified or expressed confusion about certain details of the robber—the color of his
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hat, the color of his jacket, his age, or some combination of these. Although Wishing and
Fortune testified they did not have a clear look at the robber—as Arthur Berg
did—Robinson contends their misidentifications established doubt that he was the robber.
Robinson also appeals his sentence. The District Court sentenced Robinson to a
mandatory term of life in prison under the three-strikes law, 18 U.S.C. § 3559(c), on the
counts of robbery and possession of a firearm by a convicted felon. It sentenced him to
eighty-four months imprisonment on the remaining count, to be served consecutive to the
sentence for the other two counts. The District Court ordered restitution in the amount of
$300 and a special assessment of $300. Robinson appeals the mandatory life sentence
imposed under the three-strikes law because the judge, not the jury, found the facts of the
predicate offenses.1 We will affirm. The evidence tying Robinson to the robbery,
especially Berg’s identification, is compelling. Although we affirm the District Court on
all challenged issues, we find that any error would have been harmless.
I
Robinson’s lawyers attempted to counter the consciousness-of-guilt argument at
trial, contending he did not fire his gun first but was responding to police fire. They
suggested Kappe fired the first shot, implying Berg and Kappe, who had both testified
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
over the final judgment of the District Court under 28 U.S.C. § 1291 and jurisdiction to
review the sentence under 18 U.S.C. § 3742. We review evidentiary rulings of the
District Court for abuse of discretion, but our review is plenary regarding interpretations
of the Federal Rules of Evidence. Great Am. Ins. Co. v. Norwin Sch. Dist., 544 F.3d 229,
251 (3d Cir. 2008).
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that Robinson fired first, were mistaken or trying to cover up for Kappe. Robinson’s
lawyers called as a witness a police internal affairs investigator, Michael Young, who
investigated the scene of the shooting. In the area where Kappe was standing when the
gunfight began, the investigation apparently recovered only bullet casings discharged
from Kappe’s own gun—and no bullets or bullet fragments fired from any gun.2
Robinson contends this lack of evidence means he did not fire first. Moreover, Robinson
suggests the government, during its cross-examination of Young, asked questions beyond
the scope of the direct examination, which was intended to elicit information only about
the findings of the investigation. On cross-examination, Young stated the purpose of the
investigation, which was to determine whether the police officers’ discharge of their
weapons was within the police department’s guidelines. Earlier in the trial, Kappe had
testified that he was not disciplined or suspended as a result of the gunfight. Kappe’s in-
court statements, taken together with Young’s statements about the purpose of the
investigation, Robinson contends, invoked conclusions of the investigation report, which
2
The investigation did recover numerous bullet fragments within the larger area of the
gunfight, away from where Kappe stood at its outset. According to Young’s testimony,
some of these bullet fragments were fired from a gun not belonging to a police officer.
Young was not able to say whether these bullets were fired from Robinson’s gun, but
Robinson was the only person, other than a police officer, who allegedly fired a gun at the
scene.
In addition to the eyewitness testimony of Berg and Kappe, other evidence
suggests Robinson fired his weapon. One of the officers who responded to Lieutenant
Kappe’s call for help, Andrew Harvey, secured Robinson’s revolver. Harvey testified
that he saw another investigator, from the special weapons and tactics unit, remove four
spent casings from Robinson’s gun.
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are out-of-court statements: if Kappe was not disciplined or reprimanded, Robinson’s
theory goes, the report must have concluded he was justified in discharging his weapon.
We do not agree. Statements from the investigative report were not introduced, and the
testimony was not hearsay. We do not believe the District Court abused its discretion by
permitting this testimony. Moreover, no opinion testimony was elicited about whether
Kappe was justified in firing his weapon.
Robinson also contends the prosecution impermissibly bolstered the credibility of
Kappe—including his testimony that Robinson fired first—by vouching for the
thoroughness of the internal investigation. During closing arguments, the prosecutor
juxtaposed the investigator’s testimony about the thoroughness of the investigation and
Lieutenant Kappe’s testimony that he was not disciplined.
. . . They completed a very thorough investigation. Kappe, himself, told you that
he wasn’t disciplined, he wasn’t suspended, he resumed work right away.
(J.A. 438.) Then the prosecutor told the jury it could “rest assured that if there was any
wrongdoing—” before being cut off by objection. (Id. at 438.) The District Court denied
Robinson’s motion for a mistrial and gave the jury two limiting instructions.
To find vouching, two criteria must be met: (1) “the prosecutor must assure the
jury that the testimony of a government witness is credible;” and (2) “this assurance must
be based on either the prosecutor’s personal knowledge, or other information not
contained in the record.” United States v. Vitillo, 490 F.3d 314, 327 (3d Cir. 2007)
(quoting United States v. Harris, 471 F.3d 507, 512 (3d Cir. 2006)); United States v.
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Walker, 155 F.3d 180, 187 (3d Cir. 1998). The defendant must “identify as the basis for
[the] comment an explicit or implicit reference to either the personal knowledge of the
prosecuting attorney or information not contained in the record.” Walker, 155 F.3d at
187. “Vouching is distinguishable from a personal opinion based on the evidence
presented at the trial.” United States v. Dispoz–O–Plastics, Inc., 172 F.3d 275, 283 (3d
Cir. 1999).
Interpreting the statements in a manner most favorable to Robinson, the context
here could suggest the prosecutor might have intended to invoke conclusions of the
investigation report by telling the jurors Kappe would have been disciplined had there
been wrongdoing. But the statement was not completed. We see no vouching, and in any
event the District Court issued curative instructions. Furthermore, if there was error, it
was harmless, as explained in Part III, below. See Vitillo, 490 F.3d at 329 (noting that
vouching is non-constitutional error subject to harmless error review).
II
Robinson’s lawyers also tried to present a second theory at trial to counter the
consciousness-of-guilt argument. This alternate theory would have conceded Robinson
fired first but would suggest he fired for reasons unrelated to a consciousness of guilt.
Robinson proffered a toxicology report from the hospital, showing he had tested positive
for cocaine shortly after the robbery. Evidence he was “high,” Robinson claims, would
tend to negate his consciousness of guilt. The prosecution objected to the report because
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Robinson proferred it without any testimony to interpret the positive test result. The
District Court sustained the objection.
The report did not confirm how much cocaine was in Robinson’s blood; it only
noted the test for cocaine metabolites was “positive” shortly after the arrest. As the
District Court correctly stated, the report did not provide information about how much
cocaine Robinson used, when he had used it, how it would affect a person of his size, or
most importantly whether it would lead someone to fire at a police officer. Absent
information that would explain the relationship between the cocaine use and the effect on
Robinson’s behavior, the District Court did not abuse its discretion by refusing to admit
the report.
III
Even if there were errors in this case, “it is highly probable that [they] did not
contribute to the judgment.” Dispoz–O–Plastics, 172 F.3d at 286 (quoting United States
v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 1995) (en banc)). All the evidentiary rulings
Robinson contests relate to the gun battle with Lieutenant Kappe after the robbery. But
the evidence tying Robinson to the robbery was compelling. Berg, the eyewitness who
had the best view of the robber, testified that he observed Robinson committing the crime.
He identified clothing Robinson was wearing during the robbery and the red bag he was
carrying at the time of the robbery, which was found at the scene of the shooting. Berg
also stated at trial that the revolver retrieved from the shooting was the same revolver
used during the robbery. Michael Wishing, the former store owner, also identified the
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revolver and the red bag. Although Wishing and Tyrone Fortune were confused or
mistaken about the color of the robber’s clothing and his age, the jury was entitled to give
less weight to these aspects of their testimony. These men testified that they only saw the
robber momentarily. Undoubtedly, Berg had the best view, for the longest period of time,
and his identification was the most reliable.
With respect to the prosecutor’s statements during closing arguments, we see no
error. Furthermore, we consider “the scope of the comments and their relationship to the
proceeding” and “the extent of any curative instructions.” Id. In response to the
prosecutor’s statement, the District Court issued two limiting instructions. One came
immediately after the prosecutor’s “rest assured” comment, reminding the jury that “it’s
your recollection of the evidence that governs.” (J.A. 438.) The District Court said the
government can suggest inferences to be drawn from the record but the jury can disregard
arguments if the prosecutor did not base them on the evidence. Later, the District Court
instructed that “what happened internally within the police department . . . is not really of
your concern in your deliberations.” (J.A. 463.) Given the strength of the evidence and
the limiting instructions, we find an error, if any, in this case—involving either the
evidentiary rulings or the prosecutor’s statement—was harmless.
IV
Section 3559(c) of Title 18 imposes a mandatory life sentence on serious violent
felony offenders convicted of certain prior serious felonies. Robinson challenges the
application of this “three strikes” rule because the judge and not the jury found the facts
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of the predicate offenses. The law permits this judicial finding of prior convictions.
Almendarez-Torres v. United States, 523 U.S. 224 (1998); United States v. Coleman, 451
F.3d 154, 159–60 (3d Cir. 2006); United States v. Weaver, 267 F.3d 231, 250–51 (3d Cir.
2001).
V
For the foregoing reasons, we will affirm the judgment of the District Court.
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