United States v. Marcus Walker ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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15-4062
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UNITED STATES OF AMERICA
v.
MARCUS WALKER,
Appellant
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On Appeal from the District Court
for the Eastern District of Pennsylvania
(E.D. Pa. 2-13-cr-00391-002)
Honorable Legrome D. Davis, U.S. District Judge
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Submitted Under Third Circuit L.A.R. 34.1(a)
January 23, 2018
Before: JORDAN, KRAUSE, and ROTH, Circuit Judges
(Opinion filed: June 5, 2019)
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OPINION*
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
KRAUSE, Circuit Judge.
Appellant Marcus Walker challenges his convictions for conspiracy to commit
Hobbs Act robbery in violation of 18 U.S.C. § 1951(a), attempted Hobbs Act robbery in
violation of 18 U.S.C. §§ 1951(a) and 2, and using and carrying a firearm during and in
relation to a crime of violence in violation of 18 U.S.C. §§ 924(c) and 2. For the reasons
stated below, we will affirm.
I. Background
This case stems from a robbery in which Walker acted as the lookout. While
Walker waited in a car, two of his accomplices robbed a house, one holding a boy at
gunpoint. All of Walker’s codefendants pleaded guilty to various counts, and Walker
alone went to trial.
At trial, the Government presented testimony from three cooperators who were
involved in or knew about the robbery and from Agent Patrick Henning, the lead
investigator on the case. In addition to testifying about proffer sessions he had with two
cooperating witnesses, Agent Henning spoke at length about cell phone records and cell
site location information (CSLI) associated with cell phones from the investigation.1
With respect to the cell phone records, Agent Henning testified that an analyst
extracted data from cell phones seized from two of the cooperators, which yielded contact
lists, call records, and text messages. In addition, the Government obtained through
1
CSLI identifies the cell towers to which a cell phone connects at certain times,
thereby allowing the Government to determine the cell phone’s approximate location at
the time of connection. See Carpenter v. United States, 138 S. Ct. 2206, 2211–12 (2018).
1
subpoena “call detail records” from the phone companies for those same phones, which
included “pages and pages of phone records that list, with timestamps, calls that are made
in sequential order,” as well as subscriber information. App. 686. From this information,
Agent Henning and an analyst organized certain data into slides depicting phone contacts
that the codefendants made to one another during the relevant time frame.
As for the CSLI, Agent Henning created a series of maps that identified “points of
interest” in the case, such as the location of the robbery target and the latitude and
longitude of the cell towers to which Walker’s cell phone had connected at pertinent
times over thirteen days and to which a codefendant’s cell phone had connected at
pertinent times over two days. When asked how CSLI worked, Agent Henning
responded that he was not an expert in the technology but began to explain what he did
know. Defense counsel objected on the ground that Agent Henning was not an expert
witness. 2 After some back and forth at side bar, the parties agreed that “just transposing
[onto a map] the latitude and longitude” of a cell phone tower to which a phone had
connected—information provided by the phone companies—did not require expert
analysis, and the Court allowed Agent Henning to proceed. App. 710–11. Agent
Henning then explained how the CSLI placed Walker and an accomplice in locations that
were consistent with other information about the robbery.
2
Notably, defense counsel did not object when Agent Henning explained, only
moments before, that “[t]his data is cell tower locations, it’s where the phones that the
men in this robbery were using, where these phones were communicating, which towers
they were communicating with at certain parts—certain parts of certain days.” App. 706.
2
The jury convicted Walker on all counts but, in connection with the Section 924(c)
charge, found him guilty of only using and carrying a firearm, not brandishing it. The
District Court sentenced him to 72 months’ imprisonment on the robbery counts and a
consecutive term of 60 months on the Section 924(c) count. This appeal followed.
II. Discussion3
On appeal, Walker argues that the District Court committed reversible error by:
(1) admitting the CSLI into evidence in violation of Carpenter v. United States, 138 S.
Ct. 2206 (2018); (2) allowing Agent Henning to testify about the phone records and CSLI
and improperly “vouch” for the credibility of the cooperating witnesses in doing so; and
(3) permitting Walker’s Section 924(c) conviction to stand. Because Walker did not raise
these objections before the District Court, we review only for plain error.4 See United
States v. DeMuro, 677 F.3d 550, 557 (3d Cir. 2012). We find none.
A. Admissibility of the CSLI
Walker first argues that, under Carpenter v. United States, the District Court
plainly erred when it allowed the Government to introduce CSLI that it had obtained
without a warrant in violation of his Fourth Amendment rights. Although it is true that
3
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
jurisdiction pursuant to 28 U.S.C. § 1291.
4
Plain error exists when “(1) an error was committed (2) that was plain, and (3)
that affected the defendant’s substantial rights.” United States v. Lopez, 650 F.3d 952,
959 (3d Cir. 2011) (citation omitted). Even upon finding a plain error, an appellate court
has discretion whether to grant relief but should correct the error if it “seriously affect[s]
the fairness, integrity or public reputation of judicial proceedings.” United States v.
Olano, 507 U.S. 725, 736 (1993) (citation omitted).
3
law enforcement must generally secure a search warrant based on probable cause to
obtain CSLI, see Carpenter, 138 S. Ct. at 2221, Walker’s argument is foreclosed by our
recent decision in United States v. Goldstein, which held that the exclusionary rule does
not apply where the government “had an objectively reasonable good faith belief that its
conduct was legal when it acquired [the] CSLI.” 914 F.3d 200, 202 (3d Cir. 2019). As in
Goldstein, the agents here relied on a then-valid judicial order, a then-valid statute, and
then-binding appellate authority. Id. at 204. The District Court, therefore, did not
commit any error, much less plain error, by admitting the CSLI into evidence.
B. Agent Henning’s Testimony
Walker next argues that the District Court committed plain error by permitting
Agent Henning to testify about the phone records and CSLI because, Walker contends,
Agent Henning’s testimony was based on a report he did not create and therefore violated
Walker’s Confrontation Clause rights under the Sixth Amendment. Walker also argues
that Agent Henning improperly vouched for the testimony of the cooperating witnesses.
We reject both arguments.
The Confrontation Clause provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S.
Const. amend. VI. It bars “admission of testimonial statements of a witness who did not
appear at trial unless he was unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53–54
(2004).
4
As to Walker’s Confrontation Clause argument, it is not clear that the District
Court’s decision to allow Agent Henning to testify about the phone records or CSLI was
error at all. The record contains evidence that Agent Henning personally reviewed the
data at issue, even though he worked “[i]n conjunction with an . . . analyst.” App. 695;
see, e.g., id. at 708 (“Q: What did you do with the cell site data? A: I reviewed . . . the
information from the phone companies[.] I was able to see cell site latitude and longitude
locations, which I can just go right into a Google Maps, for example, put in those points
and see where those towers were.”). Thus, it appears that Agent Henning had an
independent basis on which to testify about both the phone records and the CSLI.5 Cf.
Bullcoming v. New Mexico, 564 U.S. 647, 662 (2011) (finding relevant to its conclusion
that a Confrontation Clause violation occurred that the State did not contend that the
testifying analyst—who did not perform the lab test at issue—had an “independent
opinion” concerning the test results (citation omitted)).
Moreover, even assuming there was an error, it was not plain. There is very little
case law concerning the proper bounds of CSLI testimony (as compared to, for example,
testimony about forensic laboratory results) and nothing to suggest one must be a “cell
site information analyst” to take the stand. Appellant Br. 21. This is especially true
where, as here, the parties agreed that the records themselves were admissible.
Moreover, the Supreme Court’s Confrontation Clause jurisprudence, even as to forensic
5
See App. 774 (“THE COURT: This was done in your presence, right, the work of
the analyst, lest suggesting that - - AGENT HENNING: Yes, this was a collaborative
effort.”).
5
testing, could benefit from further clarification. See Stuart v. Alabama, 139 S. Ct. 36, 36
(2018) (Gorsuch, J., dissenting from denial of writ of certiorari) (observing that “[t]his
Court’s most recent foray in [Confrontation Clause jurisprudence relating to forensic
testing], Williams v. Illinois, 567 U.S. 50 (2012), yielded no majority and its various
opinions have sown confusion in courts across the country.”).
Finally, the error—if there was one—was harmless. See United States v. Jimenez,
513 F.3d 62, 78–79 (3d Cir. 2008). While Agent Henning’s testimony was important to
the Government’s case, three cooperating witnesses testified that Walker participated in
the robbery. In addition, as the Government notes, the defense engaged in a lengthy
cross-examination of Agent Henning and did not challenge the accuracy of the data
reflected on his slides or cite any discrepancies between the phone record exhibits and the
underlying records. Thus, even though the phone records and CSLI were important
corroborating evidence in this case, Walker cannot show prejudice, much less a
miscarriage of justice on plain error review.
Walker’s vouching argument also fails. “Vouching constitutes an assurance by the
prosecuting attorney of the credibility of a Government witness through personal
knowledge or by other information outside of the testimony before the jury.” United
States v. Walker, 155 F.3d 180, 184 (3d Cir. 1998). Although most often associated with
prosecutors’ remarks in argument, vouching can also occur during witness examination.
See United States v. Berrios, 676 F.3d 118, 134 (3d Cir. 2012). Here, Agent Henning
testified about his proffer sessions with the cooperators and the cell phone data that he
analyzed. His comments that the phone records and CSLI were “consistent with [his]
6
investigation,” e.g., App. 724, were not based “on information outside of the record,”
Berrios, 676 F.3d at 134. To the contrary, Agent Henning testified about what he learned
and how he learned it after the cooperators themselves had testified and been cross-
examined about their versions of the events. While he acknowledged that the
investigation did not utilize a wiretap or electronic surveillance, he explained that all
records were obtained after-the-fact, and his analysis was based on them and his
interviews with the cooperators. In short, Agent Henning spoke from personal
knowledge and therefore was not vouching for the cooperating witnesses. See United
States v. Christie, 624 F.3d 558, 569 (3d Cir. 2010) (holding that there was “no sensible
vouching or bolstering challenge to be made” where the lead agent’s challenged
testimony was based on his personal knowledge of the case).
C. Conviction Under Section 924(c)
Finally, Walker argues that his conviction for using and carrying a firearm in
connection with a crime of violence must be vacated because conspiracy and attempt to
commit Hobbs Act robbery do not qualify as crimes of violence under the “elements
clause” of 18 U.S.C. § 924(c)(3).6 In addition, Walker contends that the District Court
committed plain error because it is not clear whether the attempt count or the conspiracy
count was the predicate offense for his Section 924(c) conviction. Neither argument is
persuasive.
6
Walker also argues that the residual clause is void for vagueness. Because we
conclude that Walker’s Hobbs Act robbery is a crime of violence under the circumstances
of this case, we need not address Walker’s challenge to the residual clause.
7
Section 924(c) provides for a mandatory minimum consecutive sentence where a
defendant uses or carries a firearm during and in relation to a predicate “crime of
violence.” 18 U.S.C. § 924(c)(1)(A). The statute defines a crime of violence in part as
an offense that is a felony and “has as an element the use, attempted use, or threatened
use of physical force against the person or property of another.” Id. § 924(c)(3)(A). The
Hobbs Act defines “robbery” as “the unlawful taking or obtaining of personal property . .
. against his will, by means of actual or threatened force, or violence, or fear of injury,
immediate or future, to his person or property, or property in his custody or possession.”
Id. § 1951(b)(1).
In United States v. Robinson, 844 F.3d 137, 143 (3d Cir. 2016), we held that a
defendant’s contemporaneous convictions for Hobbs Act robbery and brandishing a gun
in furtherance of it “necessarily support the determination that the predicate offense was
committed with the ‘use, attempted use, or threatened use of physical force’” and,
therefore, that the predicate offense constituted a crime of violence for purposes of
Section 924(c). Given that Walker’s convictions were contemporaneous, Robinson
applies here.7
Walker’s final argument about the alleged confusion regarding which count—
conspiracy or attempt—served as the predicate offense for his Section 924(c) conviction
is belied by the record. In charging the jury on the Section 924(c) count, the District
7
Walker contends that it is unclear whether Robinson applies to non-brandishing
cases, but that very lack of clarity would foreclose a finding of plain error. See United
States v. Dobson, 419 F.3d 231, 239 (3d Cir. 2005) (“In order to be ‘plain’ an error must
be ‘clear’ or ‘obvious.’”) (citation omitted).
8
Court told the jury that, in order to convict Walker on this count, it must find beyond a
reasonable doubt “that the conspirator or the accomplice committed the crime of
attempted interference with interstate commerce by robbery.” App. 885 (emphasis
added). Breaking the charge down further, the Court continued, “So you would have to
find . . . that during and in relation to the commission of that attempted Hobbs Act
robbery, the Defendant or one of his accomplices or conspirators knowingly used or
carried a firearm.” Id. (emphasis added). Because the Court clearly instructed the jury
on the attempt count, we again find no error, plain or otherwise.
III. Conclusions
For the foregoing reasons, we will affirm the District Court’s judgment and
sentence.
9