Document Info

DocketNumber: 07-3168

Judges: Scirica, McKee, Smith

Filed Date: 9/17/2008

Status: Non-Precedential

Modified Date: 11/5/2024

  •                                                                                                                            Opinions of the United
    2008 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    9-17-2008
    USA v. Sherman
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 07-3168
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    Recommended Citation
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    http://digitalcommons.law.villanova.edu/thirdcircuit_2008/527
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 07-3168
    UNITED STATES OF AMERICA
    v.
    QOUIRTESE SHERMAN,
    Appellant
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    D.C. Criminal No. 06-cr-0545
    (Honorable Timothy J. Savage)
    Submitted Pursuant to Third Circuit LAR 34.1(a)
    September 8, 2008
    Before: SCIRICA, Chief Judge, McKEE and SMITH, Circuit Judges.
    (Filed September 17, 2008 )
    OPINION OF THE COURT
    SCIRICA, Chief Judge.
    Qouirtese Sherman was convicted by a jury of conspiracy to interfere with
    interstate commerce by attempted robbery, and obstructing, delaying and affecting
    commerce by attempted robbery, 18 U.S.C. § 1951(a); using and carrying a firearm
    during a crime of violence, 18 U.S.C. § 924(c)(1); and aiding and abetting the
    aforementioned crimes, 18 U.S.C. § 2.
    Sherman appeals (1) the denial of his motion in limine to suppress physical
    evidence and (2) the denial of his motion for a downward departure under U.S.S.G. §
    5K2.0 and denial of a variance under 18 U.S.C. § 3553(a) based on psychiatric problems.
    We will affirm.
    I.
    On the morning of January 8, 2006, Sherman and two accomplices entered the
    Exxon gas station at 3101 Broad Street in Philadelphia, Pennsylvania. The first time
    Sherman entered the store, he placed a TastyKake and a bottle of soda on the sales
    counter. The surveillance video of the first visit was not preserved,1 but Sherman’s
    fingerprints were on the bottle and TastyKake recovered at the scene. Sherman and his
    accomplices entered the store a second time approximately twenty minutes later. A
    surveillance tape shows Sherman forcing his way into the cashier’s booth past the
    attendant, Asim Shazad, and striking Shazad on the head with a gun multiple times.
    1
    The surveillance equipment was maintained by a private contractor who arrived on
    the scene two hours after the shooting and helped police preserve the portion of the tape
    that had recorded the full attempted robbery and shooting. The victim was at the hospital
    at that time and there is no indication that the police or the private contractor were aware
    of the first entry or that they might want to preserve a longer span of the surveillance
    video to record the defendant’s first entry into the store. Because the surveillance
    equipment automatically records over old material approximately every two weeks, the
    recording of the defendant’s earlier entry into the store has been destroyed.
    2
    Becoming frustrated that neither he nor his accomplice could open the cash register,
    Sherman fired three shots at Shazad, hitting him in the legs.
    II.
    A.
    Sherman contends the video footage of the robbery should not have been admitted
    into evidence.2 Fed. R. Evid. 106 provides: “When a writing or recorded statement or
    part thereof is introduced by a party, an adverse party may require the introduction at that
    time of any other part or any other writing or recorded statement which ought in fairness
    to be considered contemporaneously with it.” Sherman argues the failure of the police to
    preserve the portion of the surveillance video depicting Sherman’s first entry into the
    store necessitates the suppression of the entire video. Sherman contends Shazad’s
    testimony about the defendant’s first entry into the store bolstered the credibility of
    Shazad’s in-court identification of the defendants, and the lack of the earlier footage
    impaired Sherman’s opportunity to impeach Shazad’s credibility.
    Fed. R. Evid. 106 codifies the doctrine of completeness, which guards against the
    potential for evidence to be misleading when taken out of context. The rule compels
    admission of additional evidence “if it is necessary to (1) explain the admitted portion, (2)
    place the admitted portion in context, (3) avoid misleading the trier of fact, or (4) ensure a
    2
    We review for abuse of discretion. United States v. Sokolow, 
    91 F.3d 396
    , 402 (3d
    Cir. 1996).
    3
    fair and impartial understanding.” United States v. Soures, 
    736 F.2d 87
    , 91 (3d Cir. 1984)
    (citing United States v. Martin, 
    669 F.2d 73
    , 84 (2d Cir. 1982)). In this case, the footage
    of the defendant entering the store twenty minutes before the crime is not necessary to
    place the video of the shooting in context. The footage of the shooting “speaks for” itself
    – the jury was able to assess the admitted portion of the tape without viewing the earlier
    footage.
    Fed. R. Evid. 106 may counsel exclusion where, for example, the government
    improperly fails to preserve evidence, preserving only those portions of a writing or
    recording that are helpful to its case and destroying potentially exculpatory portions. See
    United States v. Yevakpor, 
    419 F. Supp. 2d 242
    , 246-47 (N.D.N.Y. 2006). The
    government has a duty to preserve evidence that (1) possesses an apparent exculpatory
    value, and (2) is of such a nature that the defendant would be unable to obtain comparable
    evidence by other available means. California v. Trombetta, 
    467 U.S. 479
    , 489 (1984).
    If evidence is destroyed, the defendant must prove that the government acted in bad faith.
    Arizona v. Youngsblood, 
    488 U.S. 51
    , 58 (1988).
    In this case, there was no bad faith on the part of the Government, as the
    surveillance video was preserved at a time when neither the police nor the private
    contractor had reason to believe earlier portions of the tape may have had some
    evidentiary value. The evidence was destroyed as a result of the normal functioning of
    the recording equipment, not a decision by police to delete the tape. We see no error.
    4
    B.
    Sherman also appeals the denial of a motion for downward departure under
    U.S.S.G. § 5K2.0 and denial of a variance under 18 U.S.C. § 3553(a), contending the
    District Court did not know it had the authority to grant a departure.
    If the court based its ruling on a belief that a departure on the grounds proffered by
    the defendant was legally impermissible, we have jurisdiction. United States v. Stevens,
    
    223 F.3d 239
    , 247 (3d Cir. 2000). If the court exercised its discretion in sentencing with
    a proper understanding of the law, we lack jurisdiction. 
    Id. At sentencing,
    the District Court stated:
    I recognize that although the sentencing guidelines are no longer mandatory
    I must consider them along with all of the factors set forth in 18 United
    States Code, Section 3553(a). . . . I then must determine the facts
    appropriate for imposing a reasonable sentence that is either a guideline
    sentence or a non-guideline sentence. . . . [The defendant] does have a
    mental health history, albeit not extraordinary enough to merit a downward
    departure factor. Although I will take that into consideration.
    A199-231. The District Court clearly was aware it had the authority to depart downward,
    and it exercised its discretion in declining to do so. Accordingly, we do not have
    jurisdiction to review the District Court’s decision.
    III.
    For the foregoing reasons we will affirm the judgment of conviction and sentence.
    5