NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
Nos. 11-2767, 11-4032 & 13-1084
________________
UNITED STATES OF AMERICA
v.
RICHARD CORBIN
a/k/a ASHEED
a/k/a SHEED
a/k/a RICHARD RASHEED CORBIN
Richard Corbin,
Appellant (Nos. 11-2767 & 13-1084)
________________
UNITED STATES OF AMERICA
v.
JOHNNIE CORLEY,
a/k/a
BLACK,
a/k/a
C,
a/k/a
CURLEY
Johnnie Corley,
Appellant (No. 11-4032)
________________
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal Action Nos. 2-10-cr-00352-002/3)
District Judge: Honorable Michael M. Baylson
________________
Submitted Under Third Circuit LAR 34.1(a)
November 18, 2014
Before: AMBRO, SCIRICA, and ROTH, Circuit Judges
(Opinion filed: April 21, 2015)
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OPINION*
________________
AMBRO, Circuit Judge
Appellants Richard “Rasheed” Corbin and Johnnie Corley were the ringleaders of
a group of armed robbers who targeted pharmacies as their victims. The group’s aim was
to steal drugs that were sought on the “street.” Corbin and Corley were charged with,
among other things, conspiracy to commit robbery that interferes with interstate
commerce, 18 U.S.C. § 1951(a), robbery that interferes with interstate commerce, 18
U.S.C. § 1951(a) (“Hobbs Act robbery”), and using and carrying a firearm during and in
relation to a crime of violence, 18 U.S.C. § 924(c).
Before their joint trial, the District Court granted the Government’s motion to
dismiss one of the § 924(c) counts on which Corbin was indicted. The jury convicted
him and Corley on all other charges (except for one of the § 924 counts against Corley).
A few days after the jury returned its verdict, they were sentenced. Applying the
statutory mandatory minimums that trigger when there are successive § 924(c) violations,
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
the District Court sentenced Corley to 964 months’ imprisonment and Corbin to 1,284
months. They appeal.1
I.
On appeal, Corbin and Corley take a kitchen-sink approach, listing over 15
perceived errors aimed at setting aside their convictions and sentences. We have
considered all their arguments, but address in detail only the more meritorious ones.
They are that: (1) Corbin and Corley’s speedy trial rights were violated; (2) the District
Court abused its discretion in admitting certain bad acts evidence; and (3) it erred in
imposing their respective sentences.
A.
Corbin and Corley argue for the first time on appeal that their rights under the
Speedy Trial Act, 18 U.S.C. § 3161(b), were violated. They invoke the so-called “ruse
exception” to the Speedy Trial Act and contend that, because there was over a 30-day
delay from the time they were arrested by state law enforcement officers until they were
indicted on federal charges, their speedy trial rights were violated. Because the District
Court did not have the opportunity to take the first pass at addressing this argument, it is
waived. See United States v. Cherry, 720 F.3d 161, 166 (4th Cir. 2013) (observing that,
of the Circuits to have addressed the question, they are uniformly of the view that “a
defendant who does not file a speedy indictment motion before trial waives his right to
raise that issue”).
1
The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
3
Corbin (but not Corley) also contends that his constitutional right to a speedy trial
was violated. This argument fares no better than his statutory one. Only if the period of
delay is “presumptively prejudicial” do we apply the Barker v. Wingo balancing test to
determine if a violation of a defendant’s Sixth Amendment speedy trial rights occurred.
See United States v. Dent, 149 F.3d 180, 184 (3d Cir. 1998) (citing Barker v. Wingo, 407
U.S. 514, 533 (1972)). Under that four-factor test we consider: (1) the length of the
delay; (2) the reason for it; (3) the defendant’s assertion of his speedy trial right; and (4)
any prejudice to the defendant. Even assuming that the period of delay Corbin complains
about was “presumptively prejudicial,” his argument still falls flat. The second, third,
and fourth factors weigh decidedly against a finding of a speedy trial violation.
The principal cause for the length of delay (11 months) was not the Government’s
dragging of its feet but Corley’s continuance requests and the numerous pretrial motions
on which hearings were held. As to the third factor, Corbin did not assert his speedy trial
rights. Quite the contrary. In a document filed on February 24, 2011, he complained
about the Magistrate’s rejection of his request for a 120-day continuance. Finally, Corbin
has made no showing of prejudice from the delay.
B.
Corbin and Corley next fault the District Court for admitting evidence under
Federal Rule of Evidence 404(b) that the pair had previously conspired to rob drug
dealers at gunpoint. They contend the evidence shows only their propensity to commit
robberies. Not so. As a general matter, “the Government has broad latitude to use ‘other
acts’ evidence to prove a conspiracy.” United States v. Cross, 308 F.3d 308, 324 (3d Cir.
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2002) (citation omitted). It often uses this evidence to show how a group of defendants
formed their illicit relationship and the degree to which they were familiar with each
other. See, e.g., United States v. Traitz, 871 F.2d 368, 389 (3d Cir. 1989) (admitting Rule
404(b) evidence where “the evidence of [] violence goes to a ‘shared tradition’ of
violence and toward showing a ‘symbiotic relationship’”).
That happened here. Evidence of Corbin and Corley’s prior conspiracy provided
important background for the jury: how their criminal enterprise began and developed.
See Cross, 308 F.3d at 324 (noting that “Rule 404(b) evidence is especially probative
when the charged offense involves a conspiracy”) (citations omitted). While it may have
tainted their character to some extent, any prejudicial effect was, on balance, not as
important as the inferential value of the evidence regarding the formation of their
conspiratorial relationship.
Corbin advances an additional Rule 404(b) argument. He contends that the
District Court abused its discretion in permitting his former girlfriend and Government
witness, Sharon Stevenson, to testify that he had physically abused her. But this was only
part of the story. Stevenson’s real value as a Government witness was her first-hand
account of observing Corbin with large quantities of pills, guns, and cash, her testimony
regarding Corbin’s admission to robbing pharmacies and her role within Corbin’s
criminal enterprise, and her admission to giving false grand jury testimony out of fear of
reprisal.
We review Stevenson’s testimony against this background. Principally, it made
her appear more credible and explained why she succumbed to Corbin’s demands. It
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rebuffed Corbin’s attempt to paint her as a criminal trying to cut a favorable deal with
prosecutors and shed light on why Corbin felt comfortable discussing his criminal
activity with her. Moreover, it explained why Stevenson went to great lengths to help
Corbin carry out his criminal acts. “[E]vidence concerning a witness’s credibility is
always relevant, because credibility is always at issue[.]” United States v. Green, 617
F.3d 233, 251 (3d Cir. 2010) (citation omitted). This was all the more true here, as
Corbin launched a vigorous attack against Stevenson’s credibility on cross-examination.
Thus, as with the other 404(b) evidence Corbin complains about, the predominant
purpose of Stevenson’s testimony about the physical abuse she endured was not to smear
Corbin’s character but to provide context for her other testimony and make her appear
more credible.
C.
Corbin and Corley also attack their sentences. First, Corley contends that the
District Court erred in sentencing him only four days after the jury returned its guilty
verdict and without the benefit of a presentence investigation report (often referred to as a
“PSR”). As a general matter, Corley is right—a district court should not impose a
sentence without consulting a PSR. But the general rule doesn’t apply here. Corley was
convicted of four violations of § 924(c) and faced 82 years of mandatory imprisonment.
Because the Court had no discretion to impose a lower sentence (only a higher one), the
information contained in his PSR could have only hurt Corley.
Second, Corbin and Corley both contend that the District Court improperly
imposed 25-year sentences on the successive § 924(c) convictions because they were all
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contained in the same judgment. See 18 U.S.C. § 924(c)(1)(C)(i) (“In the case of a
second or subsequent conviction under this subsection, the person shall be sentenced to a
term of imprisonment of not less than 25 years.”). It makes no difference that the § 924
convictions were contained in the same judgment. See Deal v. United States, 508 U.S.
129 (1993).
Third, Corbin and Corley contend that the District Court erred in imposing its
sentence in connection with the § 924(c) counts because the jury didn’t find that the
“brandishing” element had been satisfied or that the multiple § 924(c) violations were
“successive.” Because this is the first time these arguments are raised, we review them
for plain error—that is, we look to whether there was “an (1) error; (2) that is plain; (3)
that affects substantial rights; and (4) which seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” United States v. Tai, 750 F.3d 309, 314 (3d
Cir. 2014) (citing Johnson v. United States, 520 U.S. 461, 466–67 (1997)).
Corbin and Corley rely principally on Alleyne v. United States, 133 S. Ct. 2151
(2013), in contending that “[f]acts that increase [a] mandatory minimum sentence are []
elements and must be submitted to the jury and found beyond a reasonable doubt.” Id. at
2158. Because the underlying trial took place before Alleyne—and while it was still good
law for a court to determine whether the fact of “brandishing” was established—the
District Court, rather than the jury, made the factual determination that Corbin and
Corley brandished a firearm when robbing the various pharmacies.
To be sure, there is no Alleyne problem regarding the successive mandatory
minimum sentences because the only additional fact requiring the imposition of the
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mandatory minimum term—that each § 924(c) count is successive to the one before it—
is inherent in the jury’s verdict. Thus, the only question before us is whether the District
Court plainly erred in finding that Corbin and Corley brandished firearms, which
increased their minimum penalty for the initial § 924(c) violation from five to seven
years.
It did not. The first robbery charge that resulted in a § 924(c) conviction (and thus
the one seven-year term that Corbin and Corley each received) related to their July 23,
2009 robbery of the Pepper Pharmacy. At trial, the only fact in dispute was whether they
were the armed robbers, and the evidence against them was overwhelming. As they were
armed, the absence of jury factfinding as to the “brandishing” element did not affect the
outcome of the proceedings.2
* * * * *
For these reasons, we affirm.
2
Corbin and Corley raise numerous other arguments, but they are so clearly
unpersuasive that we need not address them. They include: (1) Corbin’s argument that
the Government was required to charge him under 18 U.S.C. § 2118; (2) Corbin and
Corley’s sufficiency-of-the-evidence claims; (3) Corbin’s argument regarding alleged
discovery violations; (4) Corbin’s argument that the District Court violated his rights
under the Sixth Amendment’s Confrontation and Compulsory Process Clauses; (5)
Corbin’s argument that the District Court abandoned its neutral role and improperly
inserted itself into the cross-examination of Nicole Perry; (6) Corbin’s argument that the
District Court erred in admitting evidence of cooperating witnesses’ plea agreements; (7)
Corbin’s argument that the Court abused its discretion in sustaining objections during the
testimony of Agent Majarowitz; (8) Corbin’s argument that he was subjected to double
jeopardy; (9) Corbin’s challenges to the grand jury proceedings; (10); Corbin’s argument
that the trial proceedings caused a variance; (11) Corbin’s claims relating to the
Government’s introduction of evidence regarding his cell phone usage at or near the time
of the robberies; and (12) Corbin’s attack on the jury instructions.
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