United States v. Maurice Ross ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 19-3195
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UNITED STATES OF AMERICA
v.
MAURICE L. ROSS,
Appellant
____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1-17-cr-00089-001)
District Judge: Honorable Yvette Kane
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
March 16, 2021
Before: PORTER, RENDELL and FISHER, Circuit Judges.
(Filed: March 17, 2021)
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OPINION*
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FISHER, Circuit Judge.
Maurice Ross appeals his conviction and sentence in connection with three armed
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
robberies of a Harrisburg, Pennsylvania convenience store. Ross was charged with three
counts each of Hobbs Act robbery; possessing a firearm as a felon, in violation of 18
U.S.C. § 922(g)(1); and brandishing a firearm in furtherance of a crime of violence, in
violation of 18 U.S.C. § 924(c)(1)(A)(ii). A jury convicted him on all counts. Ross was
sentenced to 77 years in prison, including three consecutive 25-year terms for the
violations of Section 924(c). Ross raises several issues on appeal. Because none entitles
him to relief, we will affirm.
I.1
A.
Ross argues, first, that the District Court erred by denying his motion to suppress
evidence.2 He contends the search of his residence violated the Fourth Amendment
because the warrant was not supported by probable cause. According to Ross, the
supporting affidavit fell short because it did not explain why the affiant believed that
evidence would be found at Ross’s home. Additionally, Ross says, the information in the
affidavit had become stale by the time police sought a warrant, fifteen days after the last
robbery. We disagree.
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
2
“Our review of the denial of a motion to suppress is for clear error as to the
District Court’s findings of fact, and plenary as to legal conclusions in light of those
facts.” United States v. Williams, 974 F.3d 320, 350 (3d Cir. 2020) (quoting United States
v. Hester, 910 F.3d 78, 84 (3d Cir. 2018)).
2
In reviewing a magistrate’s initial determination of probable cause, we ask “only
‘whether the magistrate had a substantial basis for concluding that probable cause
existed.’”3 Probable cause exists if, “given all the circumstances set forth in the affidavit
. . . , there is a fair probability that contraband or evidence of a crime will be found in a
particular place.”4 The age of the information contained in the affidavit “is a factor in
determining probable cause,” but we also consider “the nature of the crime and the type
of evidence.”5 Where a criminal pattern is involved, “the passage of time between the
occurrence of the facts set forth in the affidavit and the submission of the affidavit . . .
loses significance.”6
Here, we see no error, let alone clear error, in the District Court’s findings that the
affidavit in this case: (1) described in detail specific items the suspect wore during the
robberies, as evidenced by store surveillance video and clerk testimony; and (2)
explained how police identified Ross through his probation officer, after identifying the
address associated with a silver minivan driven by the person who cashed lottery tickets
stolen during the robberies. In our view, the reasons were plain why the affiant believed
that evidence would be found at Ross’s home. Ross was allegedly identified in a photo
array by the store clerk who was present during the first two robberies. He was also
3
Id. (quoting United States v. Stearn, 597 F.3d 540, 554 (3d Cir. 2010)).
4
Id. at 350-51 (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).
5
United States v. Harvey, 2 F.3d 1318, 1322 (3d Cir. 1993).
6
United States v. Urban, 404 F.3d 754, 774 (3d Cir. 2005).
3
allegedly identified by the manager of the Sheetz store where the stolen tickets were
cashed. Ross was again identified by his probation officer using surveillance video from
the Sheetz, the affidavit said. Lastly, the probation officer confirmed Ross’s home
address.
Fifteen days elapsed between the third robbery and the affidavit’s submission. But
given the repeated nature of the crimes under investigation here, that delay was hardly
decisive. Considering all the circumstances—including the multiple identifications of
Ross and the fact that the suspect apparently retained his clothes, mask, and handgun
between the robberies—we conclude that the affidavit was not stale. On the contrary, it
provided a more than substantial basis for the magistrate’s finding of probable cause.
B.
Ross next argues that he should have been granted a new trial on the charges of
brandishing a firearm in furtherance of a crime of violence, because Hobbs Act robbery is
not a “crime of violence.”7 But as this Court has recently held, “Hobbs Act robbery
necessarily has as an element the use, attempted use, or threatened use of physical force
against the person or property of another and is therefore categorically a crime of
7
18 U.S.C. § 924(c)(1)(A). A ruling on a new trial motion is generally reviewed
for abuse of discretion. United States v. Quiles, 618 F.3d 383, 390 (3d Cir. 2010).
However, because the District Court denied Ross’s motion on purely legal grounds, our
review is de novo. Id.4
violence.”8 That decision binds us here. Ross’s convictions under Section 924(c)
therefore suffer no legal infirmity, and the District Court did not err in denying the
motion for a new trial.
C.
Next, Ross says the District Court erred by admitting evidence in violation of the
rule against hearsay.9 We agree. We conclude, however, that on the facts of this case “it
is highly probable that the error did not contribute to the judgment.”10
At trial, the Government offered in evidence two “Stolen Ticket Reports”
generated by the Pennsylvania Lottery. These reports contain out-of-court statements by
the owner of the robbed convenience store, Sukhdev Riar—specifically, his estimates of
the serial numbers of the stolen lottery tickets, which he provided to Lottery staff after the
second and third robberies. The District Court admitted the reports into evidence as
business records.11
On appeal, Ross argues that the reports were inadmissible in their entirety because
8
United States v. Walker, --- F.3d ---, No. 15-4062, 2021 WL 833994, at *7 (3d
Cir. Mar. 5, 2021).
9
“Whether testimony is hearsay is a question of law over which we exercise
plenary review. To the extent the District Court’s ruling was based on a permissible
interpretation of the Federal Rules of Evidence, however, we review only for an abuse of
discretion.” United States v. Vosburgh, 602 F.3d 512, 538 (3d Cir. 2010) (citations
omitted).
10
United States v. Greenspan, 923 F.3d 138, 149 (3d Cir. 2019) (quoting United
States v. Mathis, 264 F.3d 321, 342 (3d Cir. 2001)).
11
See Fed. R. Evid. 803(6).
5
the witness who authenticated them, the Lottery’s acting director of security, did not
personally receive or verify them. But “foundation evidence for the admission of a
business record [need not] be provided by the record’s custodian.”12 Here, the acting
director of security testified in detail about the Lottery’s system for creating and
managing stolen ticket reports. He explained that reports are made contemporaneously
with allegations of theft by retailers. And he affirmed that they are kept in the regular
course of the Lottery’s business. In short, he demonstrated the necessary “‘familiarity
with the record-keeping system’ and . . . ability to attest to the foundational requirements
of Rule 803(6).”13
The statements of the store owner, Riar, within the reports are a different story.
The Government contends these statements were not offered to prove the truth of the
matter asserted—i.e., not offered to prove that tickets bearing the precise serial numbers
Riar identified were indeed stolen. But the District Court rejected this argument. It
admitted the reports—including Riar’s out-of-court statements—without any limiting
instruction. The statements therefore are hearsay14 and, under Rule 805, were
12
United States v. Console, 13 F.3d 641, 656 (3d Cir. 1993).
13
Id. at 657 (quoting United States v. Pelullo, 964 F.2d 193, 201-02 (3d Cir.
1992)).
14
See United States v. Browne, 834 F.3d 403, 416 (3d Cir. 2016) (treating as
hearsay statements that “functioned at least in part to prove the truth of the matter
asserted,” regardless of “the other reasons the Government may have sought to admit
[them]”).
6
inadmissible unless they “conform[ed] with an exception to the rule.”15 Here, the
Government makes no attempt to identify a hearsay exception that covered Riar’s
statements within the reports. Nor do we believe one applies.16 Their admission therefore
constituted error.
Nevertheless, after careful review of the record, we conclude the error was
harmless. “An evidentiary error is harmless only if it is highly probable that the
improperly admitted evidence did not contribute to the jury’s judgment of conviction.”17
“The dispositive question . . . is not whether, in the absence of the inadmissible hearsay
evidence, the jury nevertheless could have convicted.”18 “Rather, the question is whether
the improperly admitted statements may have helped to ‘cement[] the [G]overnment’s
case by adding an invisible, presumably disinterested witness’ to corroborate the
[G]overnment’s position.”19
Here, we are confident Riar’s out-of-court statements did not contribute to the
15
Fed. R. Evid. 805. As we have explained, the first level of hearsay—each report
as a whole—was admissible under Rule 803(6).
16
The most plausible candidate is again the business records exception. See Fed.
R. Evid. 803(6). But that exception requires “that the declarant made the record in the
regular course of the business activity.” United States v. Furst, 886 F.2d 558, 571 (3d Cir.
1989). Here, Riar’s estimates of the stolen tickets’ serial numbers were not made in the
regular course of his business, but were specially created for the purpose of reporting
theft.
17
United States v. Lopez, 340 F.3d 169, 177 (3d Cir. 2003) (quoting United States
v. Sallins, 993 F.2d 344, 348 (3d Cir. 1993)).
18
Id.19
Id. (quoting Sallins, 993 F.2d at 348).
7
jury’s verdict. For one thing, the remaining evidence against Ross was substantial. He
was a physical match for the person in the store surveillance videos, and the search of his
bedroom revealed clothing and a distinctive blue gun matching those worn and used by
the robber. The decisive factor, however, is that we cannot say Riar’s out-of-court
statements “add[ed] an invisible, presumably disinterested witness to corroborate the
[G]overnment’s position,” because Riar himself testified at trial.20 Defense counsel cross-
examined him—and re-cross-examined him—on how he estimated the stolen tickets’
serial numbers, and Riar acknowledged that he used a certain degree of guesswork. In
sum, Riar’s out-of-court statements were essentially duplicative of his trial testimony.
They added detail, perhaps, but they did not “add[] an invisible witness,” and we see no
realistic possibility they “cement[ed] the [G]overnment’s case.”21 We conclude therefore
that the evidentiary error was harmless.
D.
Lastly, Ross argues that the District Court erred by imposing consecutive rather
than concurrent sentences for his three Section 924(c) convictions.22 According to Ross,
those three convictions should have been merged for sentencing because they involved an
ongoing course of conduct. Ross also says that Section 924(c) is ambiguous because it is
20
Id. (internal quotation marks and citation omitted).
21
Id. (internal quotation marks and citation omitted).
22
The District Court’s sentencing decision was based on its interpretation of
Section 924(c), so we exercise plenary review. United States v. Easter, 975 F.3d 318, 322
(3d Cir. 2020).
8
silent on merger, and that the rule of lenity requires us to resolve any doubt in his favor.
We cannot accept these arguments. Section 924(c) provides that “no term of
imprisonment imposed on a person under this subsection shall run concurrently with any
other term of imprisonment imposed on the person.”23 There is nothing ambiguous in this
command. As the District Court correctly concluded, the statute ruled out concurrent
sentences for Ross’s three violations of Section 924(c), which were not a single criminal
episode, but three separate armed robberies committed on three separate dates.24
II.
For the foregoing reasons, we will affirm.
23
18 U.S.C. § 924(c)(1)(D)(ii) (emphasis added).
24
Ross cites United States v. Benjamin, in which we held that the defendant’s two
felon-in-possession convictions should be merged, because those convictions stemmed
from the same, uninterrupted course of firearm possession. 711 F.3d 371, 378-79 (3d Cir.
2013). But Benjamin has no application here, where the three convictions arose from
three discrete armed robberies.
9