United States v. Steven Baker

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-4713
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UNITED STATES OF AMERICA
v.
STEVEN L. BAKER,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 3-10-cr-00266-001)
District Judge: The Honorable Garrett E. Brown, Jr.
Submitted Under Third Circuit L.A.R. 34.1(a)
June 5, 2012
BEFORE: SCIRICA, GREENAWAY, Jr., and NYGAARD, Circuit Judges
(Filed: September 17 2012 )
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OPINION OF THE COURT
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NYGAARD, Circuit Judge
A jury found Appellant Steven L. Baker guilty of three counts of bank robbery and
three counts of using a firearm during the commission of a robbery, violations of 18
U.S.C. § 2213(a) and (d) and § 2 and 18 U.S.C. § 924(c) and § 2. The District Court
sentenced Baker to 87 months imprisonment on the robbery counts and to 57 years
imprisonment on the firearms counts.
I.
On appeal, Baker raises several issues challenging both his conviction and
sentence. Having reviewed the record and Baker’s arguments in detail, we will affirm
both his conviction and sentence.
A. Limitations on Cross-Examination
Before committing the first bank robbery, Baker received foreclosure notices for
real estate he owned. The Government viewed these notices as evidence of motive and
corroboration of testimony that Baker committed the robberies to pay his mortgage.
Arguing that the foreclosure notices were prejudicial, Baker asked the District Court to
preclude their admission as evidence. Finding Baker’s pre-robbery financial need
irrelevant and prejudicial, the District Court prohibited the Government from introducing
the foreclosure evidence.
Through subsequent trial testimony, the Government highlighted cash deposits
made to Baker’s bank account immediately after each of the three robberies. Baker did
not challenge the accuracy of this testimony. Instead, through attempted cross-
examination, Baker sought to introduce information on other cash deposits in an attempt
to show that he had made other large cash deposits. The Government objected, arguing
that this would create a false impression of Baker’s personal finances to the jury,
especially given the prior exclusion of the foreclosure notices.
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The District Court resolved this argument by reaffirming the exclusion of the
foreclosure notices and also excluding testimony regarding prior cash deposits. On
appeal, Baker maintains that by precluding cross-examination as to his pre-robbery cash
deposits, his Sixth Amendment rights were violated.
We see no abuse of discretion here. Even were we to find error, the limitation
placed on Baker’s cross-examination was harmless. Baker was permitted to cross-
examine Agent Pearsall to his tactical advantage. Testimony on cross-examination
revealed that Baker had income from sources other than the robberies and was financially
stable. Finally, our review of the record leaves us confident that the jury’s verdict was
founded on evidence including the cooperating witness’ testimony, cell phone and toll
road records that corroborate the robberies as well as Baker’s absence from work on
those days. Baker’s identification was also used to check into a local motel immediately
following the first robbery. Given this, and other evidence of record, the exclusion of
Baker’s pre-robbery bank records was harmless.
B. Jury Instruction Error
Next, Baker maintains that the District Court should have instructed the jury that
witnesses were equally available to both parties. We review a District Court’s decision
not to give a particular jury instruction and the wording of a jury instruction for an abuse
of discretion. Specifically, Baker argues that the Government’s case agent was
unavailable to him. 28 C.F.R. § 16.23(c) requires that those seeking testimony from a
Department of Justice employee, where the United States is a party, first submit an
affidavit “setting forth a summary of the testimony sought.”
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Baker, however, never complied with the above regulation. Instead, Baker
informed the District Court that he would not call the case agent to testify. The District
Court rightly determined that the witness was not rendered “unavailable” by Baker’s
failure to comply with the regulation and his decision not to call the agent to testify. The
District Court instructed the jury that:
[b]oth the United States and the defendant have the same
power to subpoena witnesses to testify on their behalf. If a
witness is equally available or unavailable to both sides, you
should draw no inference concerning the failure of the
witness to testify or any testimony the witness might have
made. In short, you should disregard the witness’[s] possible
testimony as a fact in the case.
This instruction is not “arbitrary, fanciful or clearly unreasonable.” United States v.
Frazier, 469 F.3d 85, 87-88 (3d Cir. 2006). Baker’s claim that the District Court erred in
its instruction to the jury is baseless.
C. Testimony Employing Computer Mapping
Next, Baker challenges the testimony of FBI Agent Mark Gillen. Gillen had used
commercially available software to create a map of Baker’s and Clayton’s locations from
records of their cell phone use. This map was admitted into evidence as Government
Exhibit 200. Defense Counsel did not object to its admission. Baker now argues that the
agent’s testimony required specialized knowledge that was not in the jury’s possession
and, therefore, the agent’s testimony was inadmissible. Baker, however, failed to object
to the agent’s testimony on these grounds at trial. Therefore, this claim is raised for the
first time on appeal and will be reviewed for plain error. FED.R.CRIM.P. 52(b). We find
no error here, much less a plain one.
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Gillen utilized a commercially available software program called “Microsoft
Streets and Trips.” The agent explained his work as follows:
Q: And how did you create Exhibit 200?
A: I went to specific calls on certain dates, went to
the call detail records and found out what cell tower,
the location of that cell tower was, and then I imported
the locations of the cell tower with a commercially
available software program, and then plotted the
locations of the towers, and then matched the calls to
that.
Given the omnipresent nature of computer mapping software in today’s society---
websites such as Mapquest.com and Google Earth come to mind---the agent’s testimony
about his use of the mapping software was not expert testimony and it was not an error
for the District Court to properly admit it as fact.
Additionally, even if the admission of this mapping testimony was error, Baker
has not demonstrated how he was prejudiced. Baker was not blindsided by Gillen’s
testimony. Indeed, the Government turned over the map Gillen created to the defense
well before trial. The Government argues and the record confirms that Baker made no
attempt to challenge the map or the method used to create it. Also, Baker never sought a
continuance so that his own expert might review the map and the methods Gillen used to
produce it. 1
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Baker also challenges the admission of testimony provided by Eric Tyrell, the custodian
of records for Sprint Nextel Communications. Tyrell’s testimony revealed that the cell
phone records which were placed by the Government into evidence were records that
were kept in the ordinary course of business. The record contains no objection by Baker
to this testimony. On direct examination, Tyrell testified as to the contents of these
records as well as the cell-site location for each call. Tyrell also indicated that cell
phones are “designed to find the strongest signal.” Arguing that it was expert testimony,
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D. Challenge to the Sentence
Lastly, Baker challenges his sentence as substantively unreasonable. We review
sentences for both procedural and substantive reasonableness, applying an abuse of
discretion standard. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc).
The burden of demonstrating unreasonableness rests with the party challenging the
sentence. Id. A sentence is substantively unreasonable only if “no reasonable sentencing
court would have imposed the same sentence on that particular defendant for the reasons
the district court provided.” Id. at 568.
The parties agreed that Baker’s mandatory minimum sentence for the 18 U.S.C. §
924(c) offenses was 57 years. The parties also agreed that the robbery convictions
resulted in an advisory Guidelines range of 87 to 108 months, based on an offense level
of 27 and a category III criminal history. Baker did not seek a downward departure, but
defense counsel objected, during re-direct, to Tyrell’s testimony concerning the factors
used to determine the distance between an originating cell site and a phone. The District
Court overruled the objection, finding that it was within Tyrell’s personal knowledge.
This too was no error. We agree with the District Court that Tyrell’s discussion of the
operation of cell phone towers did not require any “scientific, technical, or other
specialized knowledge.” FED.R.EVID. 702. Tyrell’s testimony consisted entirely of
reading and interpreting Baker’s cell phone records, including records detailing the
locations of cell phone towers used to carry out his phone calls. Any cell phone user of
average intelligence would be able to understand that the strength of one’s cell phone
reception depends largely on one’s proximity to a cell phone tower. Even if this were not
common knowledge, Tyrell certainly had sufficient training and experience to testify
about the operation of cell phone towers. Tryell had been employed by Sprint for over
ten years, including time spent working in the company’s electronic surveillance group.
Thus, he had sufficient “personal knowledge” of how cell phone towers operate to testify
reliably on this subject. See Donlin v. Philips Lighting North America Corp., 581 F.3d
73, 81 (3d Cir. 2009) (“When a lay witness has particularized knowledge by virtue of her
experience, she may testify—even if the subject matter is specialized or technical—
because the testimony is based upon a layperson’s personal knowledge rather than on
specialized knowledge within the scope of Rule 702.”).
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did ask the District Court for a variance from the mandatory minimum sentence. Given
Baker’s substantial criminal history, the District Court noted that it would ordinarily have
sentenced him to the top of the Guidelines range. But, the court agreed that a lower
sentence was called for, noting the mandatory minimum sentence Baker faced.
The majority of Baker’s sentence was the result of a statutory minimum, over
which the District Court lacked discretion. Baker does not challenge the imposition of
this mandatory sentence on appeal. Instead, he challenges the District Court’s imposition
of 7.25 years of the 64 years he was eligible for under the advisory Guidelines. Baker
contends that the District Court gave undue weight to the Guidelines range and did not
meaningfully consider the other § 3553(a) factors. He points to the disparity between his
sentence and that of his co-defendant, Clayton. The record, however, provides ample
justification for a guideline-range sentence. The District Court considered Baker’s
request for a variance, but nevertheless determined that he deserved a sentence at the
bottom of the Guideline range. Pointing to Clayton’s ultimate sentence is no help to
Baker. Clayton had not yet been sentenced when Baker was, and Baker did not reference
Clayton during the sentencing hearing. Further, Clayton had cooperated with the
Government and pleaded guilty to different charges. He was not similarly situated to
Baker and any disparity in sentencing was of no moment.
Accordingly, we find no reversible error evident in Baker’s sentencing.
II.
For the foregoing reasons, we will reject Baker’s contentions and will affirm the
District Court’s judgment and sentence.
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