United States v. Corey Crawford , 498 F. App'x 163 ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-2545
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UNITED STATES OF AMERICA
v.
COREY CRAWFORD,
Appellant
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Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action No. 2-10-cr-00059-004)
District Judge: Honorable Harvey Bartle, III
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Submitted Under Third Circuit LAR 34.1(a)
September 18, 2012
Before: AMBRO, GREENAWAY, Jr., and TASHIMA, * Circuit Judges
(Opinion filed: September 24, 2012)
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OPINION
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*
Honorable A. Wallace Tashima, Senior Circuit Judge for the Ninth Circuit Court of
Appeals, sitting by designation.
AMBRO, Circuit Judge
Following a four-day jury trial, Appellant Corey Crawford was found guilty of one
count of conspiracy to commit robbery in violation of 18 U.S.C. § 1951(a), three counts
of robbery in violation of 18 U.S.C. § 1951(a), and two counts of carrying a firearm, or
aiding and abetting the use and carrying of a firearm, in relation to a crime of violence in
violation of 18 U.S.C. § 924(c). Crawford was sentenced to 505 months’ imprisonment.
He appeals both his conviction and sentence. We affirm.
I.
Because we write solely for the parties, we note only those facts relevant to our
decision. In June of 2009, Crawford and three co-conspirators—Marques Reavis,
Michael Spivey, and Marcus Spivey—engaged in a series of armed robberies of
McDonald’s restaurants. The first robbery occurred at a McDonald’s restaurant where
Crawford was employed. During a late-night shift Crawford left a drive-through window
open. Reavis and the Spiveys entered the restaurant through the open window wearing
gloves and masks and carrying a plastic gun, a BB gun, and a bat. They hit and kicked
both of the employees working with Crawford that night, took cash and property from
them, and forced one of them to open the restaurant’s safe in order to steal cash from the
restaurant. Crawford played along with the robbery by lying on the ground with his co-
workers while the store was robbed, although his personal belongings were not taken nor
was he struck by any of the robbers. After the robbery, Crawford accompanied his two
co-workers to the police department and gave a signed statement about the robbery.
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Using robbery proceeds, Reavis and Crawford purchased a gun and taser that they
used in the next two robberies. Both of those robberies followed the same course of
events. Reavis and the Spiveys entered the restaurant through an open drive-through
window wearing masks and gloves and carrying the BB gun, firearm, and taser. They
tied up the employees using plastic ties, took cash, cell phones and credit cards, and
forced the manager to open the restaurant’s safe. For both robberies, Crawford supplied
his taser and drove the getaway car.
During the subsequent investigation, police searched the Spiveys’ residence and
Reavis’s car, where they found black clothing, the taser, and plastic ties similar to those
used to secure the employees. Crawford was arrested by FBI Special Agent Carpenter.
After being advised of his rights, he admitted to participating in all three robberies.
At trial, the Government presented testimony from employees of each restaurant,
Reavis, and the investigating officers, as well as surveillance video of two of the
robberies, cell phone records showing communication between Reavis and Crawford on
the nights of the robberies, and the physical evidence discovered by police.
Crawford also testified. He admitted to being friends with Reavis, but claimed
that he was not involved in any of the robberies. He explained that he did not confess to
Agent Carpenter. Rather, he told Agent Carpenter that Reavis had admitted committing
the robberies with the Spiveys. Crawford testified that he simply conveyed what he had
been told by Reavis about the robberies.
During her closing argument, the prosecutor argued that the jury should not
believe Crawford’s trial testimony about his statement to Agent Carpenter:
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And remember what he said, because I’ll be honest with you, it was truly
laughable at the moment, and it made no sense to me. And I submit that it should
not make any sense to you what he said about that statement.
The District Court interrupted “Don’t vouch for the witnesses or vouch for the
testimony . . . .” The prosecutor continued:
And I certainly don’t want to vouch for the witnesses because your recall of the
evidence is going to control. And remember what he said. He said that he thought
he was just there as a witness when he was talking to Agent Carpenter. Ask
yourself, does that make sense?
Supp. App. 617. She then discussed Agent Carpenter’s testimony and again asked
whether “it make[s] sense what Corey Crawford told you on Friday[.] I submit to you
that it doesn’t.” Id. 619. At other points in her closing argument and rebuttal to defense
counsel’s closing, the prosecutor stated that an argument or testimony did or did not
“make sense.”
Crawford was convicted of all charged offenses. Based on an offense level of 29
and a criminal history category of IV, Crawford’s Guidelines range was 121 to 151
months’ imprisonment plus two consecutive mandatory minimum sentences, one for
seven years and the other for twenty-five years, for the use of a firearm during a crime of
violence. Crawford represented himself pro se at the sentencing hearing. He did not
object to the Guidelines calculation or the offense conduct described in the presentence
report. On June 7, 2011, the Court sentenced Crawford to 505 months’ of incarceration.
II.
Crawford raises three issues on appeal. He first argues that the prosecutor
engaged in misconduct by vouching for the credibility of witnesses during her closing
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argument by stating that some testimony made sense and other testimony did not.
Crawford also argues that the District Court misstated the law on conspiracy when
reading the jury instruction to the jury. Finally, he asserts that the 505-month sentence
imposed by the District Court was procedurally and substantially unreasonable.
III.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
appellate jurisdiction under 28 U.S.C. § 1291.
Crawford did not contemporaneously object to either the prosecutor’s statements
during closing argument or the District Court’s misstatement while reading the jury
instruction. Thus we review those statements for plain error. United States v. Brennan,
326 F.3d 176, 182 (3d Cir. 2003). We review sentences for both procedural and
substantive reasonableness, applying an abuse-of-discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007); United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009)
(en banc). The party challenging the sentence bears the burden of demonstrating
unreasonsableness. Tomko, 562 F.3d at 567.
IV.
Crawford asserts that the prosecutor engaged in misconduct when she made
comments such as Crawford’s explanation of his confession “made no sense to me” and
that his earlier confession did “make[] sense.”
A prosecutor commits misconduct by vouching when she “(1) assures the jury that
the testimony of a government witness is credible” and (2) bases that assurance “on either
[her] claimed personal knowledge or other information not contained in the record.”
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United States v. Lore, 430 F.3d 190, 211 (3d Cir. 2005). A prosecutor “may state [her]
views of what the evidence shows and the inferences and conclusions that the evidence
supports.” United States v. Zehrbach, 47 F.3d 1252, 1265 n.11 (3d Cir. 1995) (en banc).
The prosecutor’s arguments about Crawford’s trial explanation of his earlier
confession were based on evidence submitted at trial. She was contrasting Crawford’s
explanation with the testimony, videos, and other evidence submitted to the jury. Other
arguments that testimony or defense counsel’s arguments did or did not make sense were
likewise based on evidence submitted at trial. There is no error here. There is also no
error in the prosecutor’s use of the phrase “I submit to you.” United States v. Walker,
155 F.3d 180, 188 (3d Cir. 1998) (“The phrase, ‘I submit to you that,’ without more, does
not constitute vouching.”).
Crawford next contends that the District Court’s instruction on conspiracy
misstated the law. During his reading of the jury charge, the District Court mistakenly
stated that the Government did not have to prove that the conspirators agreed to commit
one of the object crimes before realizing the mistake and restating that sentence of the
charge correctly.
The indictment charges a conspiracy to commit several Federal crimes. The
Government does not have to prove that the alleged conspirators agreed to commit
at least one of the object crimes, and you must unanimously agree on which crime.
I think I -- let me rephrase that. The Government charged a conspiracy to commit
several crimes. The Government does not have -- does have to prove that the
alleged conspirators agreed to commit at least one of the object crimes, and you
must unanimously agree on which crime.
You cannot find Corey Crawford guilty of conspiracy unless you unanimously
agree that the same Federal crimes were the object of the conspiracy. It is not
enough if some of you agree that one of the charged crimes was the objective of
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the conspiracy and others agree that a different crime was the object of the
conspiracy.
App. 6–7.
“Jury instructions must be read as a whole.” United States v. Flores, 454 F.3d
149, 157 (3d Cir. 2006). An instruction is not in error if “the instruction fairly and
adequately submits the issues in the case to the jury without confusing or misleading the
jurors.” United States v. Simon, 995 F.2d 1236, 1243 n.11 (3d Cir. 1993) (internal
quotations and alterations omitted).
Although the District Court incorrectly added the word “not” during the initial
reading of the charge, it realized this mistake and re-read the instruction correctly. The
Court reinforced the correct instruction in the next two sentences. The written charge
supplied to the jury correctly stated the law. As a whole, the instruction was not
confusing or misleading. We find no error here.
Further, even if either the prosecutor’s statement and/or the District Court’s
misstatement (later corrected) in the jury charge were improper, they were harmless.
Neither the prosecutor’s statements nor the District Court’s slip of the tongue seriously
affected the “fairness, integrity or public reputation of [the] judicial proceedings.” United
States v. Peppers, 302 F.3d 120, 125 (3d Cir. 2002). Moreover, evidence of Crawford’s
guilt was substantial if not overwhelming.
V.
Crawford also contends that the sentence of 505 months’ imprisonment is
unreasonable because the District Court did not properly consider the factors enumerated
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in 18 U.S.C. § 3553(a) and failed to justify a sentence that amounts to a life sentence.
Crawford also argues that the length of the sentence is unconstitutionally disproportionate
and unreasonable.
District courts must follow a three-step process in imposing a sentence: (1)
calculate the applicable Guidelines range; (2) formally rule on departure motions; and (3)
exercise their discretion by considering relevant factors from § 3553(a). United States v.
Gunter, 462 F.3d 237, 247 (3d Cir. 2006). If a sentence is “procedurally sound, we will
affirm it unless no reasonable sentencing court would have imposed the same sentence on
that particular defendant for the reasons the [D]istrict [C]ourt provided.” Tomko, 562
F.3d at 568.
To the extent that Crawford challenges the mandatory sentences imposed under
section 924(c), we have held that 924(c)’s sentencing scheme does not violate the Eighth
Amendment. United States v. Walker, 473 F.3d 71, 84 (3d Cir. 2007). Nor is there
procedural or substantive error. After determining the aggregate Guidelines range to be
505 to 535 months’ imprisonment (taking into account the mandatory minimum
sentences to be applied consecutively), the District Court discussed the § 3553(a) factors,
including the Guidelines range, the nature of Crawford’s offenses, his criminal history,
and the need to protect the public and deter future criminal conduct. App. 8–9. Although
a sentence of over forty-two years for the offenses here is equivalent to a life sentence,
we do not conclude that the District Court abused its discretion by sentencing Crawford
as it did in the context we have before us.
* * * * *
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We affirm Crawford’s conviction and sentence.
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