Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
12-3-2008
USA v. Harper
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4369
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-4369
__________
UNITED STATES OF AMERICA,
vs.
MARCEL HARPER
a/k/a Miz
a/k/a Mike Harper,
Appellant
__________
Appeal from the United States
District Court for the Eastern District of Pennsylvania
(No. 2:05-CR-00170-JP-02)
District Court Judge: Honorable John R. Padova
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
November 21, 2008
___________
Before: FUENTES, HARDIMAN and GARTH, Circuit Judges,
(Opinion Filed: December 3, 2008)
___________
OPINION
___________
GARTH, Circuit Judge:
Appellant Marcel Harper (“Harper”) was indicted for conspiracy to commit armed
bank robbery in violation of 18 U.S.C. § 371; armed bank robbery and aiding and abetting
armed bank robbery of Artisans Bank in Wilmington, Delaware, in violation of 18 U.S.C.
§§ 2113(d) & 2; use and carrying, and aiding and abetting use and carrying, of a firearm
in connection with a crime of violence for the Artisans Bank robbery in violation of 18
U.S.C. §§ 924(c) & 2; armed bank robbery and aiding and abetting armed bank robbery of
Citizens Bank in Brookhaven, Pennsylvania, in violation of 18 U.S.C. §§ 2113(d) & 2;
and use and carrying and aiding and abetting use and carrying of a firearm in connection
with a crime of violence for the Citizens Bank robbery in violation of 18 U.S.C. §§ 924(c)
& 2.
On April 14, 2004, Harper’s cohorts, Ronnie Muir, Jerlyle Sowell, and Burnie
Tindale, robbed the Artisans Bank, stealing over $46,000. On June 15, 2004, Tindale,
Sowell, and Christopher Booker robbed the Citizens Bank, stealing just under $53,000.
Harper was not present at either robbery. The robberies were planned by the defendants,
who cased the banks under the pretense of obtaining information about accounts or
collecting coin wrappers. They created diagrams of the layouts of the banks and held
“dress rehearsals” of the robberies.
Tindale assembled the robbery crew and Harper’s role was that of teacher. He
instructed his associates on bank robbery techniques and assisted in the selection and the
casing of the banks to be robbed. The defendants testified that Harper directed them to
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use stolen cars to commit the robberies and to switch to a “clean” getaway car. Harper
also taught the other three defendants that the robbery should be a three-man job, where
one man controls the counter and gains access to the vault, one controls the room, and a
third guards the door. Harper stressed the use of firearms.
At trial, Tindale, Sowell, and Muir testified against Harper. On March 9, 2007, the
jury found Harper guilty of all charges, and on November 14, 2007, the District Court
sentenced Harper to a total of 424 months in prison: 40 months imprisonment to run
concurrently on two counts of armed bank robbery and one count of conspiracy to commit
armed bank robbery; 84 months to run consecutively after the 40-month sentence for
using and carrying a firearm during the Artisans Bank robbery; and 300 months on the
second firearm count also to run consecutively. Judgment was entered on November 16,
2007. Harper timely appealed this judgment.
We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 3742.
I.
We review post-verdict motions for judgment of acquittal de novo and “[o]ur
standard . . . is the same as that which the trial court applied. We must view the evidence
in the light most favorable to the jury verdict and presume that the jury properly evaluated
credibility of the witnesses, found the facts, and drew rational inferences. ‘The verdict of
a jury must be sustained if there is substantial evidence, taking the view most favorable to
the Government, to support it.’” United States v. Iafelice, 978 F.2d 92, 94 (3d Cir.
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1992)(internal citations omitted).
A.
“The three elements of a Section 371 conspiracy are: 1) the existence of an
agreement, 2) an overt act by one of the conspirators in furtherance of the objective, and
3) an intent on the part of the conspirators to agree . . . .” United States v. Rankin, 870
F.2d 109, 113 (3d Cir. 1989).
1.
Harper argues that his “absence of participation” in the Artisans Bank robbery
warrants acquittal. Viewing the evidence in favor of the government, we hold that there
was sufficient evidence for the jury to find Harper guilty of conspiracy to rob the Artisans
Bank. The testimony of Tindale, Sowell, and Muir discloses that Harper helped plan the
robbery, helped to choose the bank and case it, created a diagram of the bank, taught the
men how to effectively rob a bank and properly use firearms, participated in dress
rehearsals, and took a large cut of the proceeds. The jury had sufficient evidence to find
the elements of agreement, overt act, and intent through unity of purpose. See United
States v. Kapp, 781 F.2d 1008 (3d Cir. 1986).
2.
Harper argues that the other robbers took the lead on the second robbery and that
he “dropped out of” the conspiracy. Alternatively, Harper claims that he had no
knowledge of the illegal objective of the conspiracy. Viewing the evidence in the light
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most favorable to the government, we hold that there was more than sufficient evidence
for the jury to find Harper guilty of conspiracy to rob the Citizens Bank.
Harper’s associates testified that, while Harper did not participate after the initial
planning stages, he did help to find and case the Citizens Bank and created a diagram of
the bank. After the men executed the robbery the same way as before, money was set
aside for Harper.1 There was sufficient evidence to find agreement, overt act, intent to
agree, and unity of purpose because Harper was involved in planning, knew the robbery
would take place, and understood the illegal objective.
Harper’s claim that he had withdrawn from the conspiracy is meritless.
“Withdrawal takes more than cessation of criminal activity. ‘The defendant must present
evidence of some affirmative act of withdrawal on his part, typically either a full
confession to the authorities or communication to his co-conspirators that he has
abandoned the enterprise and its goals.’” United States v. Kushner, 305 F.3d 194, 198
(3d Cir. 2002)(internal citations omitted). There is no evidence that Harper had
withdrawn.
B.
To convict for aiding and abetting, “the government must prove (1) that the
substantive crime has been committed, and (2) the defendant knew of the crime and
1
Harper never received this money because Muir ended up taking the share for
himself. Tindale told Muir he would give Harper some money later, which he did.
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attempted to facilitate it.” United States v. Garth, 188 F.3d 99, 113 (3d Cir. 1999). It is
undisputed that the crimes were committed and that Harper had been instrumental in the
planning and preparation of both bank robberies. The jury had before it sufficient
evidence to convict Harper.
II.
Harper challenges the sufficiency of the evidence on his aiding and abetting of the
firearm offense related to the Citizens Bank robbery.2 Viewing the evidence in favor of
the government, we must uphold the verdict if “any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” United States v. Voigt,
89 F.3d 1050, 1080 (3d Cir. 1996)(internal citation and quotation marks omitted).
Harper argues that the use of guns in the Citizens Bank robbery cannot be
attributed to him because he did not know the robbery’s details. We disagree.
The testimony showed that Harper intended that his co-conspirators use guns
during the first robbery, which he helped to plan by, inter alia, giving the men advice on
how to use a gun to control the situation. Harper similarly, although less extensively,
helped to plan the second bank robbery. The jury could reasonably infer that the same
advice he gave as to the use of guns during the first robbery would carry over to the
Citizens Bank robbery, and that he intended and desired that his confederates use guns to
2
It is undisputed that the crime of “use and carrying of a firearm in connection
with a crime of violence” occurred.
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achieve their end. See United States v. Gordon, 290 F.3d 539, 547-48 (3d Cir. 2002).
III.
Next Harper contends the District Court erred in not striking the allegedly perjured
testimony of FBI agent Vito Roselli (“Roselli”). We review the District Court’s
evidentiary rulings for abuse of discretion. United States v. Serafini, 233 F.3d 758, 768
n.14 (3d Cir. 2000).
Harper alleges that Roselli perjured himself when Roselli told the Grand Jury that
Harper received a large share of the proceeds of the Citizens Bank robbery. Harper filed
a pre-trial motion to dismiss the indictment, and during a hearing on this motion, Roselli
admitted that, at the time of his testimony, he knew Harper had not received that money.
Harper contends that Roselli adopted his false statements at trial.
Harper’s arguments are meritless. Harper concedes that the government never
even questioned Roselli on direct as to Harper’s receipt of Citizens Bank proceeds. On
cross-examination, the record shows that Roselli did, indeed, admit that his testimony
before the Grand Jury was incorrect. Thus, Roselli did not adopt any allegedly perjured
statements. We hold that the District Court did not abuse its discretion in denying
Harper’s mid-trial motion to strike, and that Harper is not entitled to a new trial.
IV.
Harper next argues that the evidence was insufficient to show that the victim banks
were federally insured. One of the elements of bank robbery that the government must
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prove is that the victim bank was FDIC insured. See United States v. Guerrero, 169 F.3d
933, 944 (5th Cir. 1999). We must uphold the verdict if “any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” United States
v. Voigt, 89 F.3d 1050, 1080 (3d Cir. 1996).
Harper argues that the present-tense testimony of the bank employees only served
to prove that the banks are presently FDIC insured, and not that they were insured at the
time of the robberies.
“[E]xistence of [a] fact is some indication of its probable existence at an earlier
time.” United States v. Lewis, 260 F.3d 855, 856 (8th Cir. 2001)(internal citation and
quotation marks omitted). Indeed, “the jury need not understand this testimony narrowly
to mean that the bank was insured only at the time of trial, but that it could reasonably
find from this evidence, taken in the context of the witness’ complete testimony, that the
bank was also insured when the crime occurred.” Guerrero, 169 F.3d at 944; see also
United States v. Nnanyererugo, 39 F.3d 1205, 1208 (D.C. Cir. 1994); United States v.
Sliker, 751 F.2d 477, 484-85 (2d Cir. 1984); United States v. Knop, 701 F.2d 670, 673
(7th Cir. 1983); United States v. Campbell, 616 F.2d 1151, 1153 (9th Cir. 1980); United
States v. Safley, 408 F.2d 603, 605 (4th Cir. 1969).
Taken in context of the bank officials’ testimony at trial regarding the events on
the day of the robbery, a rational trier of fact could have found the testimony to be
sufficient that the banks were insured at the time of the robberies.
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V.
Harper contends that the District Court erred when, after it ordered a re-reading of
the testimony of Muir, a co-defendant, it failed to instruct the jury that it was not to afford
special weight to Muir’s testimony. When a defendant does not offer a particular jury
instruction to be read to the jury, any review of failure to give it is for plain error. See
United States v. Olano, 507 U.S. 725, 732-34 (1993).3
The jury requested a re-reading of Muir’s testimony regarding the Citizens Bank
robbery. All counsel agreed that the jury could hear portions of Muir’s direct
examination and his entire cross examination. Harper did not request a special instruction
at trial, thus we review for plain error.
There was no error. District Courts have “broad discretion in deciding whether to
accede to a jury’s request for a reading of testimony.” United States v. Bertoli, 40 F.3d
1384, 1400 (3d Cir. 1994)(internal citation and quotation marks omitted). Here, the
District Court acted properly in light of counsels’ agreement, and the Court’s prior
instruction that the jury treat Muir’s testimony “with great care and caution” because
Muir had entered into a plea bargain. Moreover, no substantial right of Harper was
affected given the evidence against him from other witnesses, and the District Court’s
3
Plain error requires there to be an error, the error be plain, and the plain error
affect substantial rights. Olano, 507 U.S. at 732-34. “[I]n most cases [‘affects substantial
rights’] means that the error must have been prejudicial: It must have affected the
outcome of the district court proceedings.” Id. at 734.
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original charge which cautioned the jury to treat Muir’s testimony with care.
VI.
Lastly, Harper challenges the reasonableness of his sentence. We review “the
substantive reasonableness of the sentence under an abuse-of-discretion standard.”
United States v. Wise, 515 F.3d 207, 218 (3d Cir. 2008).
Harper does not contend that the District Court misapplied the Guidelines or erred
in applying Section 3553(a). His claim of unreasonableness rests upon his arguments
contesting the sufficiency of the evidence on the substantive counts. We hold that the
evidence was more than sufficient for a reasonable jury to convict Harper on all counts
and that his sentence was reasonable.
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