United States v. Michael Green , 664 F. App'x 193 ( 2016 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-1379
_____________
UNITED STATES OF AMERICA
v.
MICHAEL GREEN
a/k/a MIKEY
Michael Green,
Appellant
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. No. 2-14-cr-00159-001)
District Judge: Honorable R. Barclay Surrick
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
November 3, 2016
Before: JORDAN, GREENAWAY, JR., and RENDELL, Circuit Judges.
(Filed: November 16, 2016)
_______________
OPINION
_______________

This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.
Michael Green was convicted of armed carjacking in violation of 18 U.S.C.
§ 2119. On appeal he complains about the exclusion of a juror, the sufficiency of the
evidence, limitations placed on an expert’s testimony, and sentence enhancements used to
raise his offense level. All of his claims lack merit, and we will affirm.
I. Background
A. Factual Background
Green and an unidentified accomplice carried out an armed carjacking while
impersonating police officers. They used red and blue flashing lights on their car to
mimic the lights on a police cruiser and pulled over a Chevrolet Silverado pickup truck.
They then approached the vehicle on foot, wearing police uniforms and displaying
badges.
As Green and his accomplice approached the vehicle, the driver, Osvaldo Ortega,
observed that Green and his accomplice were armed with what appeared to be handguns.
Green told Ortega that he was a police officer and that Ortega was under arrest. He
demanded that Ortega get out of the truck. When Ortega refused and asked what he had
done to justify being pulled over, Green opened the door and threw Ortega out of the
vehicle and onto the ground. He then handcuffed Ortega’s hands behind his back, and
forced him into the rear driver’s side seat of the truck. The two passengers in Ortega’s
truck, Luis Rosado and Juan Saez-Santos, were also handcuffed and placed in the back
seat of the truck. Green allegedly targeted the pickup because Ortega, Rosado, and Saez-
2
Santos were all drug dealers and Green wanted to steal their drugs. Green went back to
his vehicle, removed the police lights from the dashboard, placed them in a bag, and put
the bag in the back of the pickup truck. He then parked his vehicle a few blocks away.
Green’s accomplice drove the truck and picked up Green, who got in the front passenger
seat.
As they drove off, Ortega declared that Green and his accomplice were “not real
cops.” Green responded by pointing his handgun at Ortega and repeatedly threatening to
kill him if he did not “shut up.” After some further argument, Green hit Ortega on the
head, shoulder, and legs with the handgun. Green also hit Rosado with the weapon and
repeatedly struck Saez-Santos in the eye with it.
Ortega, Rosado, and Saez-Santos managed to free themselves by jumping from the
moving vehicle. The impact broke Rosado’s right arm and he was hospitalized for
several days with radial nerve damage that took months to heal. Ortega and Saez-Santos
reported the carjacking to the police, and the police quickly found the fake police car. It
was a rental car from the Philadelphia Airport that had been rented in Green’s name.
Detective John Palmeiro of the Philadelphia Police Department led the
investigation into the carjacking. He obtained Green’s photograph and created a photo
array that he showed to the three victims. Ortega identified Green as one of his attackers,
but Rosado and Saez-Santos were unable to make an identification. Palmeiro knew that
Green was the suspect when he presented the array, but he claims that he did not in any
way suggest that Ortega should choose Green.
3
Palmeiro also conducted a search of the rental car pursuant to a warrant. Green’s
fingerprints were found inside the vehicle. A wallet -- with Green’s driver’s license and
numerous credit cards in his name -- and two cellular phones belonging to Green were
also recovered.
Nearly one month after the carjacking, the pickup truck was recovered. It had
sustained damage from a fire that the police determined was intentionally set. DNA
evidence recovered from the truck was inconclusive.
B. Procedural Background
Green was indicted both for “tak[ing] a motor vehicle … from the person or
presence of another by force and violence,” with “the intent to cause death or serious
bodily harm,” in violation of 18 U.S.C. § 2119, and for using and carrying a firearm
while committing a crime of violence, in violation of 18 U.S.C. § 924(c).1
1. Voir Dire
During voir dire, the prospective jurors were asked whether any of their
immediate family, close friends, or relatives had been defendants in a criminal case. One
of the jurors initially answered no, yet she came forward a few days later, after being
selected but before the trial had started, and acknowledged that she had answered the
question incorrectly. She informed the Court that a relative had been charged with a DUI
and her two brothers had been charged with simple assault. The government moved to
strike her for cause, arguing that this was “more than an oversight” and that the juror
1
For both counts, Green was also charged as an accomplice under 18 U.S.C. § 2.
4
could no longer be trusted. (App. at 303.) That motion was granted, and the juror was
replaced by one of the alternates
2. The Photo Array and the Expert’s Testimony
Green sought to suppress any mention of Ortega’s identification of Green from the
photo array. The District Court concluded that the array was not unduly suggestive and
that evidence of the identification was therefore admissible.
At trial, Green, seeking to discredit the photo array, introduced an expert witness,
Michael Leippe, to testify about best practices police should use with photo arrays, cross-
racial identification bias, and “weapon focus.”2 During the suppression hearing before
trial, the District Court asked Green’s counsel if the defense intended to ask Leippe
whether “the procedures used in this particular case were proper.” (Id. at 272.) Green’s
attorney answered that she “was not going to ask him that question” but instead would
focus on “general questions about the way Philadelphia police conduct arrays … .” (Id.
at 273.) Counsel said further that she felt “it’s the province of the court to say whether a
specific array was unduly suggestive” and that it therefore “would be an improper
question.” (Id. at 273.) Nevertheless, she reiterated that she wanted to ask the witness
“to discuss his knowledge of the field generally and then relate that specifically, whatever
issues the specific facts in this case raise based upon his knowledge.” (Id. at 280.) The
Court reserved ruling on the scope of Leippe’s testimony.
2
“Weapon focus” is the theory that victims are unable to properly record
memories of faces during violent crimes because their attention is focused on the weapon
involved in the commission of the crime.
5
Right before Leippe testified, the District Court ruled that he could “testify as to
the specific factors that may influence … an identification,” but he could not “discuss[]
too closely the facts of this case other than … the fact that the specific factors apply.”
(Id. at 737-38.) Leippe could not “get[] into opinions about this case and how the jury
should view the evidence and testimony in this case other than, this is the science.” (Id.
at 738.)
When Leippe testified, Green’s attorney asked a variety of questions about best
practices for photo arrays. Leippe also testified about difficulties in cross-racial
identification. Green’s counsel did not ask specific questions about the photo array that
had been used in this case but asked hypothetical questions about similar photo arrays.
And, during closing arguments, counsel was permitted to discuss the expert’s testimony,
argue how it applied to the facts of the case, and suggest that the photo array was flawed
in a variety of ways.
3. Verdict, Sentencing, and Appeal
The jury found Green guilty as charged. At sentencing, the District Court gave
him a four-level offense enhancement under the sentencing guidelines, based on the
serious injury to Rosado. It also added a four-level offense enhancement for abducting
Ortega, Rosado, and Saez-Santos during the carjacking. On the carjacking count, the
Court imposed a sentence of 180 months’ imprisonment, which was within the
recommended guidelines range. The firearm charge carried a mandatory consecutive
term of at least 60 months and the District Court sentenced him to 68 months on that
6
count. Green was already in prison for an unrelated crime, and his sentence in this case
was set to run concurrently with the sentence he was then serving.
Before sentencing, Green filed a motion for acquittal under Federal Rule of
Criminal Procedure 29(c), and a motion for a new trial under Rule 33. Those motions
were denied, and Green timely appealed.
III. DISCUSSION3
A. There was No Error in Excluding the Juror
Green first claims that the District Court should not have dismissed the juror who
failed to accurately answer the question about being related to anyone charged with a
crime. We review for abuse of discretion a district court’s decision to dismiss a juror for
cause. United States v. Polan, 970 F.2d 1280, 1284 (3d Cir. 1992). “Determining
whether a prospective juror can render a fair verdict lies ‘peculiarly within a trial judge’s
province.’” Id. (quoting Wainwright v. Witt, 469 U.S. 412, 428 (1985)). In accordance
with the broad deference we necessarily give the District Court, we see no error in its
decision to dismiss that juror. The question posed to the juror in voir dire regarding
family members who had faced criminal charges was unambiguous. And even though
the juror came forward and claimed to have misunderstood the question, we cannot say
the Court was wrong to conclude that the juror’s incorrect answer during voir dire
rendered her service on the jury inappropriate.
3
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
7
In any event, even if the Court had improperly excluded the juror, that by itself
would not be a sufficient basis for requiring a new trial. The Constitution guarantees a
right to an impartial jury, not the right to have a particular juror remain on the jury. See
United States v. Martinez-Salazar, 528 U.S. 304, 311-13 (2000) (explaining that the
process of selection is not of “federal constitutional dimension. … [s]o long as the jury
that sits is impartial …”). While the “wholesale exclusion of a particular group” might be
harmful even without proof of “the existence of actual prejudice in the resulting jury
panel,” United States v. Salamone, 800 F.2d 1216, 1227 (3d Cir. 1986), the improper
exclusion of a single juror, except in circumstances where invidious discrimination is a
threat, e.g., Batson v. Kentucky, 476 U.S. 79, 93-94 (1986), would ordinarily not be of
constitutional magnitude, absent proof of prejudice. Cf. U.S. v. Shiomos, 864 F.2d 16,
18-19 (3d Cir. 1988) (noting that there “is no reversible error” without proof “that some
class of juror was improperly excluded … or that the panel ultimately chosen was in any
way not impartial”). And Green does not offer a scintilla of evidence, or even attempt to
argue, that the exclusion of the juror in quesion led to a biased jury or caused him
prejudice in any way.
B. There was Sufficient Evidence to Sustain Green’s Conviction
Green next argues that there was insufficient evidence to sustain the jury’s verdict.
With regard to the gun charge, he claims that there was no evidence that he had used an
actual firearm. With regard to the carjacking charge, he claims that there was no
evidence of “intent to cause death or serious bodily harm,” one of the elements required
for his conviction.
8
Green, in his motion for a judgment of acquittal, challenged the carjacking
conviction but did not challenge the firearm conviction. We therefore review his firearm
conviction for “plain error” and will overturn the conviction on that count only if “we
determine the evidence presented was so insufficient that for us to uphold his conviction
would result in a miscarriage of justice or be fundamentally wrong.” United States v.
Barel, 939 F.2d 26, 31 (3d Cir. 1991). For the carjacking count, we will sustain the
jury’s verdict “if there is substantial evidence, viewed in the light most favorable to the
government, to uphold the jury’s decision.” United States v. Gambone, 314 F.3d 163,
170 (3d Cir. 2003 (quoting United States v. Beckett, 208 F.3d 140, 151 (3d Cir. 2000)).
We “must be ever vigilant ... not to usurp the role of the jury by weighing credibility and
assigning weight to the evidence, or by substituting [our] judgment for that of the jury.”
U.S. v. Caraballo-Rodriguez, 726 F.3d 418, 430 (3d Cir. 2013) (en banc) (internal
quotation marks and citation omitted). The evidence here is more than sufficient to
affirm on both counts.
1. The Firearm Conviction
Green’s argument with regard to the firearm conviction turns on information in the
record that was not presented to the jury. He says that his gun was not real, relying on a
statement that Saez-Santos made to the police that described him grabbing Green’s gun
and unsuccessfully trying to fire it twice. On appeal, we ask whether the evidence that
was before the jury can support the verdict. So we cannot, and do not, take into account
9
evidence that was not presented to the jury at trial. 4 See In re Capital Cities/ABC, Inc.’s
Application for Access to Sealed Transcripts, 913 F.2d 89, 96 (3d Cir. 1990) (“This Court
has said on numerous occasions that it cannot consider material on appeal that is outside
of the district court record.” (citations omitted)). Without the argument that the gun must
have been fake because it did not fire, Green’s sufficiency of the evidence claim –
already weak – collapses completely.5
All that is left is Green’s claim that the testimony of Ortega and Saez-Santos that
Green had a firearm is insufficent because there was no way to verify that the gun was
not a toy or an inoperable replica. But in United States v. Beverly, 99 F.3d 570, 572 (3d
Cir. 1996), we found that non-expert testimony that a robber used a gun may, in and of
itself, suffice to support a conviction for using a firearm in commission of a violent
crime. Both Ortega and Saez-Santos had “ample time to view the weapon[]” and their
testimony could rightly have been credited by the jury. Id. at 573. The jury’s conclusion
that Green used a firearm in the commission of a violent crime certainly was not
4
Even if we were to take into account Saez-Santos’s testimony that the gun did
not fire, that testimony would not compel a different outcome. A firearm is defined in the
relevant statute as “any weapon … which will or is designed to or may readily be
converted to expel a projectile by the action of an explosive … .” 18 U.S. C. § 921(a)(3).
The weapon need not actually be operable in order to be a firearm. See United States v.
Rivera, 415 F.3d 284, 286 (2d Cir. 2005) (holding that an inoperable pistol was a firearm
under Section 921(a)(3)).
5
Green claims that the government had an obligation to introduce Saez-Santos’s
remarks into evidence. He seems to be putting a new spin on Brady v. Maryland, 373
U.S. 83, 87-88 (1963) (requiring the disclosure of evidence that “would tend to
exculpate” the accused and is “material either to guilt or to punishment”). But there is no
toe-hold for even a traditional Brady claim because, as just noted, supra note 4, Saez-
Santos’s remark is not exculpatory.
10
fundamentally wrong and did not “result in a miscarriage of justice.” Barel, 939 F.2d at
31.
2. The Carjacking Conviction
A conviction for carjacking requires “intent to cause death or serious bodily
harm.” 18 U.S.C. § 2119. Green argues that there was no evidence of the required mens
rea because he was simply bluffing and did not intend to cause harm. In effect, Green
argues that if he did not want to injure his victims, then he could not have had the
required mental state. However, the mental state required is not an unconditional intent
to cause harm. Instead, in Holloway v. United States, 526 U.S. 1, 7-8 (1999), the
Supreme Court made it clear that a “conditional … intent” is sufficient to sustain a
conviction. The prosecution need only “prove beyond a reasonable doubt that the
defendant would have at least attempted to seriously harm or kill … if that action had
been necessary to complete the taking of the car.” Id. at 12. On the other hand, “an
empty threat, or intimidating bluff,” is, without more, not sufficient. Id. at 11.
Our precedent illustrates that Green’s actions demonstrate the requisite conditional
intent to cause death or serious bodily harm. In United States v. Lake, an individual stole
a car after waving a gun at the driver and ordering the driver to give him the keys. 150
F.3d 269, 272 (3d Cir. 1998). We affirmed the defendant’s conviction for the use of a
firearm in the process of a carjacking and in doing so found that there was sufficient
evidence to support the underlying offense of carjacking. Id. at 272-73. We emphasized
that “a rational jury could find that [the defendant] had the intent to kill or cause serious
bodily injury to [the driver] if she did not comply with his demands.” Id. at 272.
11
Green’s actions provided the jury with even more grounds to convict than the
defendant’s actions in Lake. He showed plainly his willingness to use force. He
slammed Ortega to the ground, repeatedly threatened to kill him, and pistol whipped him
and the other occupants of the vehicle. We agree with the District Court that this
evidence “was more than compelling in establishing that the Defendant possessed the
requisite intent … .” (App. at 19.)
Green also argues that, even if he had the requisite intent, he did not possess it
contemporaneously with the crime. See Holloway, 526 U.S. at 7-8 (requiring
contemporaneous intent). That argument is also unfounded. He approached the vehicle
with his gun drawn and immediately threatened the individuals in the vehicle. The jury
could have reasonably believed that he had violent intentions at the time he demanded
that Ortega exit the vehicle.
D. Any Error in Limiting Leippe’s Testimony was Harmless
Green argues that the District Court should have let him question Leippe about the
specific facts of this case – in particular about the suggestiveness of the photo array that
Detective Palmeiro used. The government responds that the whole line of questioning
was waived by Green’s concession that asking “whether a specific array was unduly
suggestive … would be an improper question.” (App. at 273.) For purposes of this
appeal, we assume without deciding, that Green’s argument was not waived. We
therefore review the District Court’s ruling on the scope of expert testimony for abuse of
discretion. United States v. Mathis, 264 F.3d 321, 335 (3d Cir. 2001).
12
The District Court did not state a legal basis for narrowing the scope of Leippe’s
testimony, which makes evaluating the ruling difficult. But it appears that the Court was
concerned that the expert would “get[] into opinions about this case and how the jury
should view the evidence and testimony in this case … .” (App. at 738.) Ordinarily, an
expert may testify and offer his opinion as to the facts of a particular case or an ultimate
issue in the case, Fed. R. Evid. 702, 704, though the balancing considerations of Rule 403
still apply. No balancing was discussed by the District Court here.
We do not, however, need to decide whether the District Court erred because, even
if there was error, it was harmless. “[It] is highly probably that” any error “did not
contribute to the judgment.” See United States v. Stevens, 223 F.3d 239, 244 n.5 (3d Cir.
2000) (internal quotation marks omitted)). Green, through his counsel, was able to ask
Leippe to apply his expertise to nearly identical facts through the use of hypothetical
questions. And, in closing arguments, counsel took full advantage of the opportunity to
apply Leippe’s answers to the specific facts of this case. Thus, Green was not truly
foreclosed from presenting his version of the facts to the jury.
Moreover, the evidence of Green’s guilt was overwhelming, including the
discovery of Green’s driver’s license and fingerprints in the car that was used in the fake
police traffic stop. Having the expert declare that there were flaws in the photo array or
that Ortega made an error in identification was, therefore, highly unlikely to sway the
jury.
E. The District Court Properly Applied the Sentencing Guidelines
13
Finally, Green challenges the sentencing enhancements that were applied in
calculating the guidelines range for his sentence. He claims that the government failed to
produce evidence necessary to prove that Rosado suffered a serious bodily injury.6 He
also argues that the victims were abducted not to “facilitate commission of the offense or
to facilitate escape,” U.S. Sentencing Guidelines Manual § 2B3.1(b)(4)(A) (U.S.
Sentencing Comm’n 2016), but to rob them of their drugs. Neither of those arguments
carries the day.
1. A Broken Bone Constitutes a Serious Bodily Injury
Green argues that Rosado’s fracture was not a “serious bodily injury.”7 We
review the District Court’s determination that Rosado’s injury was serious for clear error.
United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en banc).
A “serious bodily injury” is an “injury involving extreme physical pain or the
protracted impairment of a function of a bodily member, organ, or mental faculty; or
requiring medical intervention such as surgery, hospitalization, or physical
rehabilitation.” U.S. Sentencing Guidelines Manual § 1B1.1 cmt. n.1(L) (U.S.
Sentencing Comm’n 2016). Rosado’s fractured bone required “hospitalization” and
“physical rehabilitation,” and the record substantiates that Roasdo was in “extreme
6
The government bears the burden of proving facts that support an increase in the
base offense level of a guidelines calculation. United States v. McDowell, 888 F.2d 285,
291 (3d Cir. 1989).
7
Green concedes that he caused “bodily injury” which is defined as “any
significant injury; e.g., an injury that is painful and obvious, or is of a type for which
medical attention ordinarily would be sought.” U.S. Sentencing Guidelines Manual
§ 1B1.1 cmt. n.1(B) (U.S. Sentencing Comm’n 2016).
14
physical pain” and required serious medical attention as a result of the injury. In fact, one
of the officers who first encountered Rosado after the carjacking testified that he “could
see [Rosado’s] bone pushing the skin out from the fracture itself.” (App. at 438.) There
was no error, let alone clear error, in applying the enhancement for serious bodily injury.
Cf. United States v. Reese, 2 F.3d 870, 897 (9th Cir. 1993) (finding that a victim
“diagnosed with a fractured elbow and ordered to wear a sling” suffered a serious bodily
injury).
2. There was an Abduction that Facilitated the Carjacking
Section 2B3.1(b)(4)(A) of the Sentencing Guidelines provides for an offense level
enhancement when “any person was abducted to facilitate commission of the offense or
to facilitate escape[.]” We review the District Court’s decision to apply the sentencing
enhancement for abuse of discretion. United States v. Fumo, 655 F.3d 288, 314 (3d Cir.
2011).
The guidelines define “abducted” expansively as being “forced to accompany an
offender to a different location.” U.S. Sentencing Guidelines Manual § 1B1.1 cmt.
n.1(A) (U.S. Sentencing Comm’n 2016). There is no question that Ortega, Rosado, and
Saez-Santos were “abducted” when they were forced out of the vehicle, handcuffed,
forced back into the vehicle, and driven away. Cf. United States v. Reynos, 680 F.3d 283,
291 (3d Cir. 2012) (concluding that forcing the employees of a store to move from a
restroom towards the cash register constituted an abduction). While Green argues that
the abduction did not “facilitate” the crime or his efforts to escape, it obviously did. By
placing his victims in the car, Green made it less likely that they would report the
15
carjacking to the police in a timely fashion. The abduction therefore facilitated his
escape, and the District Court did not abuse its discretion in imposing the sentencing
enhancement.8
III. CONCLUSION
For the foregoing reasons, we will affirm Green’s conviction and sentence.
8
Green’s argument that robbery was the real motive is irrelevant. Green could
have had more than one motive in his decision to abduct the victims and it was not clear
error for the jury to credit the prosecution’s account. See United States v. Napolitan, 762
F.3d 297, 312 (3d Cir. 2014) (noting that we review the District Court’s factual
determinations for clear error).
16