United States v. Markeith Webb

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-1981
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UNITED STATES OF AMERICA
v.
MARKEITH JOHN WEBB
a/k/a John Markeith Webb,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 5-09-cr-00755-001)
District Judge: The Honorable Joel H. Slomsky
Submitted Under Third Circuit L.A.R. 34.1(a)
June 5, 2012
BEFORE: SCIRICA, GREENAWAY, Jr., and NYGAARD, Circuit Judges
(Filed September 27, 2012)
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OPINION OF THE COURT
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NYGAARD, Circuit Judge
Following a jury trial, Appellant Markeith Webb was found guilty of armed
robbery and of using and carrying a firearm during that armed robbery. He was
sentenced to 199-months imprisonment, five years of supervised release and ordered to
pay restitution. Webb appeals, raising various issues. We will affirm his conviction and
sentence.
I.
During the robbery of the Lafayette Ambassador Bank, the Appellant was
recognized by bank tellers as the grandson of an elderly bank customer. Webb had
displayed a firearm during the robbery and had stolen nearly five thousand dollars. When
removing the cash, Webb had taken two dye packs from two separate money drawers.
As Webb fled the bank, a teller observed one of the dye packs explode and spray red
colored dye in the area.
The day after the robbery, a local merchant contacted the authorities to report that
he had currency that was discolored with red dye. After determining that the cash was
used after the robbery, law enforcement got video surveillance footage showing Webb
entering an Exxon Square convenience store and speaking with a clerk. That clerk
identified Webb as someone she knew as “Pip,” and that he had entered the store asking
to exchange fifty dollars bills into smaller denominations. The clerk noticed red dye on
the currency Webb was trying to exchange. Video footage also showed the car Webb
was driving---a green Chevrolet Malibu registered to Webb‟s girlfriend. An address for
Webb‟s girlfriend, Shaina Marie Holmes was obtained and the car was found at her
residence. Police noticed red dye stains on the car‟s interior.
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Webb was arrested while in possession of additional red-stained currency.
At a later meeting with authorities, Webb admitted to the Lafayette Ambassador
bank robbery and to driving his girlfriend‟s green Chevrolet Malibu. He denied,
however, ever threatening anyone during the course of the robbery. Lastly, he admitted
to disposing of most of the damaged currency, reserving approximately $2500.00 for his
personal use. At trial, the Government did not introduce any of Webb‟s statements as
evidence against him.
II.
On appeal, Webb raises several issues challenging his conviction and his sentence.
A. Franks Hearing Error
Webb first argues that he was entitled to a hearing under Franks v. Delaware, 438
U.S. 154 (1978).1 The District Court denied Webb‟s motion for a Franks hearing.
Normally, we review the denial of a motion for suppression for clear error as to the
underlying facts and exercise plenary review as to its legality. Inasmuch as the most
demanding standard articulated by any court is de novo, and because the de novo standard
of review is satisfied here, we need not determine the applicable standard today. When
reviewing the District Court‟s refusal to hold a Franks hearing de novo, it is clear the
court did not err because Webb failed to establish the requisite preliminary showing.
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A Franks hearing is a hearing to determine whether a police officer‟s affidavit used to
obtain a search warrant was based on false statements by the police officer. Franks v.
Delaware, 438 U.S. 154 (1978).
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Webb argues that the warrant for his arrest was based on a flawed affidavit. He
contends that the affidavit omitted certain facts, that these omissions were intentional or
made with reckless disregard for the truth, and, as a result, there could be no probable
cause to arrest him. We have conducted a de novo review of the record and conclude that
Webb did not meet his burden of establishing he was entitled to a Franks hearing. First,
we note that affidavits supporting warrants are presumptively valid. Webb offered no
evidence in support of his request for a Franks hearing, and the District Court
accordingly determined that he had failed to make a substantial showing that the
affidavits reflected false statements that were made knowingly and recklessly. We agree
with the District Court. Webb‟s argument focuses on an alleged falsity in two paragraphs
of Detective Alonzo‟s affidavit. This allegation, even if true, is not enough to support an
inference that Detective Alonzo acted recklessly or was deliberately untruthful. Even if
the events at the bank did not occur as allegedly reported in the affidavit, that sheds little
light on the affiant‟s veracity. Franks and its progeny make clear that a defendant must
make a substantial showing that the affiant knew of or recklessly disregarded the
informant‟s untruthfulness. The District Court committed no error in finding that Webb
was not entitled to a Franks hearing.
B. Denial of Motion for New Trial
Next, Webb argues that the District Court erred by denying his motion for a new
trial because it was based on the destruction of exculpatory evidence. He points to the
destruction of an envelope on which one teller had written notes, and bank forms that
were provided to tellers after the robbery. The destruction of these pieces of evidence,
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Webb maintains, entitled him to a new trial because the Government failed to turn them
over to him during discovery.
Although framed in his brief as a violation of Brady v. Maryland, 373 U.S. 83(1963), Webb‟s actual basis for a new trial is the destruction of exculpatory evidence.
We examine this claim under a different standard. As has been noted, “[t]he Supreme
Court‟s jurisprudence divides cases involving nondisclosure of evidence into two distinct
universes. Brady and its progeny address exculpatory evidence that is still in the
government‟s possession. Youngblood and Trombetta govern cases in which the
government no longer possesses the disputed evidence.” United States v. Femia, 9 F.3d
990, 993 (1st Cir. 1993). Although destruction of evidence may constitute a due process
violation, “[a] defendant who claims destroyed evidence might have proved exculpatory .
. . has to show the prosecution‟s bad faith in ordering or permitting its destruction.”
United States v. Deaner, 1 F.3d 192, 200 (3d Cir. 1993). Absent proof of bad faith,
“failure to preserve evidence that might be of use to a criminal defendant . . . is not a
denial of due process.” Id. To prove bad faith, there must be a “showing that the
Government intentionally [tried] to gain some tactical advantage over [the defendant].”
Webb has not proven that the Government acted in bad faith. Detective Alonzo
testified that the descriptions of the robber on the envelope matched the description given
him by the same teller later in his investigation. There was no need to keep the repetitive
notes on the envelope and discarding it does not rise to the level of an intentional act
necessary to gain a tactical advantage over Webb. Therefore, the District Court did not
err by denying Webb‟s motion.
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C. Improper Use of Proffer Agreement
“[A]ny statement made in the course of plea discussions with an attorney for the
prosecuting authority which do not result in a plea of guilty” is not admissible against the
defendant who “was a participant in the plea discussions.” FED. R. EVID. 410; see also
FED. R. CRIM. P. 11(f) (providing that the admissibility of any plea, plea discussion, or
any related statement is governed by Rule 410). However, a defendant may waive his
rights under Rule 410 and Rule 11, and allow the government to introduce statements
made in the course of plea discussions, “as long as there is no „affirmative indication that
the agreement [to waive] was entered into unknowingly or involuntarily.‟” United States
v. Hardwick, 544 F.3d 565, 569-70 (3d Cir. 2008) (alteration in original) (quoting United
States v. Mezzanatto, 513 U.S. 196, 210 (1995)). Here, Webb‟s proffer agreement
provided that the government could use at trial statements that Webb made during the
proffer, in the event that Webb were to make representations at trial inconsistent with
those he had made at the proffer. Webb does not challenge the voluntariness of his
proffer agreement. Instead, he raises a more generalized argument that his proffer
agreement was invalid because of a lack of consideration.
The proffer letter states that the Government “will consider” Webb‟s proffer “in
formulating an appropriate resolution to this matter.” Webb might prefer that the proffer
letter he signed include some clearer statement of the Government‟s contractual
obligation. Although the written statement of the bargain set forth by the Government is
minimal, it sufficiently sets forth the benefit the Government confers–an appropriate
resolution of the matter. Put another way, the proffer letter, as written, obligated the
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Government to hear and evaluate Webb‟s statements as an initial step toward a possible
compromise. We are, therefore, satisfied that the proffer agreement sets forth
consideration and is not invalid on that ground.
D. Obstruction of Justice Enhancement
Lastly, Webb argues that his sentence was procedurally invalid because the
District Court improperly applied a two-level sentencing enhancement based on
obstruction of justice. We conclude that Webb‟s challenge to the obstruction of justice
enhancement under section 3C1.1 is meritless. Application note 1in the commentary to
this Guideline section states that “[o]bstructive conduct that occurred prior to the start of
the investigation of the instant offense of conviction may be covered by this [G]uideline
if the conduct was purposefully calculated, and likely to thwart, the investigation or
prosecution of the offense of conviction.” U.S.S.G.§ 3C1.1 cmt. n.1. Briefly, the
Government proffered recorded telephone conversations between Webb and his brother.
During these conversations, Webb sought to have his brother confront the teller who had
identified Webb as the robber. The District Court reasonably concluded that Webb‟s
request that his brother confront a critical witness constituted an attempt to “threaten[ ],
intimidat[e], or otherwise unlawfully influenc[e] ... [a] witness.” U.S.S.G. § 3C1.1 app.
n.4(A). The District Court did not err by applying these enhancements.
III.
For all of these reasons, we will affirm the conviction and judgment of sentence of
the District Court.
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