NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-2365
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UNITED STATES OF AMERICA
v.
ERIC WELTON,
Appellant
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On Appeal From the United States District Court
for the Eastern District of Pennsylvania
(Crim. No. 07-cr-00244-2)
District Judge: Honorable Paul S. Diamond
Submitted Under Third Circuit LAR 34.1(a)
June 4, 2010
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Before: AMBRO, CHAGARES, and VAN ANTWERPEN, Circuit Judges.
(Filed: July 20, 2010)
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OPINION OF THE COURT
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CHAGARES, Circuit Judge.
Eric Welton was convicted by a jury of: (1) one count of conspiracy to commit
Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a); (2) one count of Hobbs Act
robbery, and aiding and abetting, in violation of 18 U.S.C. §§ 1951 and 2; and (3) one
count of using and carrying a firearm during and in relation to a crime of violence, and
aiding and abetting, in violation of 18 U.S.C. §§ 924(c) and (2). On appeal, he challenges
the sufficiency of the evidence supporting his convictions. We will affirm.
I.
Because we write solely for the benefit of the parties, we will only briefly
summarize the essential facts. On August 30, 2006, Zachery Alston drew a gun in a
Philadelphia tavern and demanded money from the tavern’s employees. Midway through
this armed robbery, after Alston was unable to open the tavern’s safe, he placed a
telephone call to Welton. At Alston’s request, Welton came to the tavern. After arriving
at the tavern, Welton proceeded to assist Alston with the robbery. While Alston attempted
to open the safe, Welton held the gun and watched over the tavern’s employees. Alston
then retrieved the gun from Welton and stole a wallet from one of the employees.
Shortly after Welton arrived at the tavern, Philadelphia police officers arrived at the
scene. When the police officers entered the tavern, Welton attempted to flee. Both Alston
and Welton were ultimately apprehended. The police officers recovered $451 in cash,
several rings, and a wallet bearing the identification of one of the tavern employees from
Alston and $53 from Welton. In addition, the officers recovered a loaded Smith &
Wesson nine millimeter semiautomatic handgun with nine live rounds from the crime
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scene. Welton made a statement to police claiming that he was merely a victim in the
crime.
Alston pled guilty and, pursuant to a cooperation agreement, testified against
Welton at trial. In addition to Alston’s testimony, the Government presented evidence
from the employees who had been present during the robbery, the police officers who
responded to the call and took Welton’s statement, and several other witnesses. The jury
convicted Welton of all three counts, and the District Court sentenced him to a total term
of imprisonment of 130 months. Welton timely appealed.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231, and we have
jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over challenges to the
sufficiency of the evidence. United States v. Bornman, 559 F.3d 150, 152 (3d Cir. 2009).
“‘The burden on a defendant who raises a challenge to the sufficiency of the evidence is
extremely high.’” United States v. Iglesias, 535 F.3d 150, 155 (3d Cir. 2008) (quoting
United States v. Lore, 430 F.3d 190, 203-04 (3d Cir. 2005)). The Court “‘must consider
the evidence in the light most favorable to the government and affirm the judgment if there
is substantial evidence from which any rational trier of fact could find guilt beyond a
reasonable doubt.’” Id. (quoting Lore, 430 F.3d at 204). The Government may meet its
evidentiary burden “entirely through circumstantial evidence,” United States v. Bobb, 471
F.3d 491, 494 (3d Cir. 2006), and a reviewing court “must credit ‘all available inferences
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in favor of the government.’” United States v. Sparrow, 371 F.3d 851, 852 (3d Cir. 2004)
(quoting United States v. Gambone, 314 F.3d 163, 170 (3d Cir. 2003)). “[T]he evidence
need not unequivocally point to the defendant's guilt as long as it permits a finding of guilt
beyond a reasonable doubt.” United States v. Davis, 183 F.3d 231, 238 (3d Cir. 1999).
Relevant to the first two counts, the Hobbs Act provides that:
Whoever in any way or degree obstructs, delays, or affects commerce or the
movement of any article or commodity in commerce, by robbery or extortion
or attempts or conspires so to do, or commits or threatens physical violence to
any person or property in furtherance of a plan or purpose to do anything in
violation of this section shall be fined . . . or imprisoned . . . or both.
18 U.S.C. § 1951(a). For the conspiracy count, “the government must establish a unity of
purpose between the alleged conspirators, an intent to achieve a common goal, and an
agreement to work together toward that goal.” United States v. Gibbs, 190 F.3d 188, 197
(3d Cir. 1999).
Relevant to the second and third counts, the aiding and abetting statute provides
that “[w]hoever commits an offense against the United States or aids, abets, counsels,
commands, induces or procures its commission, is punishable as a principal.” 18 U.S.C. §
2(a). To establish an aiding and abetting offense, the Government must prove “that the
substantive crime has been committed and that the defendant knew of the crime and
attempted to facilitate it.” United States v. Frorup, 963 F.2d 41, 43 (3d Cir. 1992).
For the third count, section 924(c) provides that “any person who, during and in
relation to any crime of violence . . . for which the person may be prosecuted in a court of
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the United States, uses or carries a firearm, . . . shall, in addition to the punishment
provided for such crime of violence . . . be sentenced to a term of imprisonment . . . .” 18
U.S.C. § 924(c)(1)(A). The statute defines “crime of violence” as a felony that “has an
element the use, attempted use, or threatened use of physical force against the person or
property of another,” or that “by its nature . . . involves a substantial risk that physical
force against the person or property of another may be used in the course of committing
the offense.” 18 U.S.C. § 924(c)(3). It is well settled that a conspiracy to commit robbery
is a crime of violence. See, e.g., United States v. Mendez, 992 F.2d 1488, 1491 (9th Cir.
1993); United States v. Johnson, 962 F.2d 1308, 1311-12 (8th Cir. 1992); United States v.
DiSomma, 951 F.2d 494, 496 (2d Cir. 1991).
III.
Viewing the evidence in the light most favorable to the Government, a rational jury
easily could have found Welton guilty beyond a reasonable doubt as to all three counts.
Alston’s testimony shows that Welton knowingly joined a conspiracy to rob the tavern at
gunpoint, assisted Alston with the robbery by holding the gun and watching over the
employees, and carried a gun while he and his co-conspirator perpetrated an armed
robbery. Specifically, Alston testified that he used the gun to instill “fear” in the Tavern
employees and to “intimidate them or scare them” into giving him what he was
demanding. Supplemental Appendix (“S.A.”) 200. When he could not open the safe, he
called Welton and told him to come to the tavern. S.A. 204. Once he arrived, Alston told
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him to hold the gun, and Welton watched the tavern employees with the gun in his
possession while Alston tried to gain access to the safe. S.A. 204-05. Alston then
retrieved the gun from Welton and proceeded to take a wallet from one of the tavern
employees. S.A. 206. The Government also introduced evidence establishing the
interstate commerce element required under the Hobbs Act.
Welton argues that Alston’s testimony was “tainted” because he was a cooperating
witness, and that his testimony “should not have been given any weight by the jury.”
Welton Br. 16-17. On a sufficiency challenge, however, we evaluate this testimony in the
light most favorable to the Government. Even “uncorroborated accomplice testimony may
constitutionally provide the exclusive basis for a criminal conviction.” United States v.
Perez, 280 F.3d 318, 344 (3d Cir. 2002) (quotation marks omitted). In this case, the
evidence produced at trial was more than sufficient to convict Welton of all three counts
against him.1
IV.
For the foregoing reasons, we will affirm the judgment of the District Court.
1
Welton also submitted a supplemental pro se brief, reiterating the arguments
raised by counsel and raising several other issues. Pursuant to Local Appellate Rule 31.3,
parties represented by counsel may not submit pro se briefs except in situations covered
by Anders v. California, 386 U.S. 738 (1967). United States v. Essig, 10 F.3d 968, 973
(3d Cir. 1993). Because Welton was represented by counsel, we need not address these
additional arguments. Nonetheless, we have thoroughly considered Welton’s arguments,
and find them to lack merit.
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