Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-19-2008
USA v. Benson
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-5105
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"USA v. Benson" (2008). 2008 Decisions. Paper 1212.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 06-5105
__________
UNITED STATES OF AMERICA
v.
STEPHEN BENSON,
Appellant
__________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No.04-cr-00493)
District Judge: Honorable Anita B. Brody
__________
Submitted Under Third Circuit LAR 34.1(a)
on March 25, 2008
Before: McKEE, RENDELL, and TASHIMA,* Circuit Judges.
(Filed May 19, 2008 )
__________________
* Honorable A. Wallace Tashima, Senior Judge of the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
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OPINION OF THE COURT
__________
RENDELL, Circuit Judge.
This appeal arises out of the conviction of Steven Benson for a series of offenses
based upon a botched robbery at Ugo’s Market in Philadelphia. The witnesses to the
crime included: Ann Giacomucci, the manager of the store; Michele (“Mike”) Gesualdo,
an elderly patron who frequented the store; and Officer Anthony Jones, the officer who
arrived during the robbery. Officer Christopher Egan arrived soon thereafter and found
the gun left on a shelf in the store.
When Officer Jones arrived, the robber was still in the store and tried to run out
when Officer Jones ordered him to stop. The robber then ran back into the store and
disappeared for a few seconds before reappearing and trying to walk away. At the
preliminary hearing, both Officer Jones and Ms. Giacomucci were able to identify Benson
but Mr. Gesualdo was not.
Benson was convicted by a jury of interference with interstate commerce by
robbery, possession of a firearm in furtherance of a crime of violence, and possession of a
firearm by a convicted felon. Benson filed a motion for new trial, setting forth
essentially the same three arguments that he presents on appeal. These are: (1) that the
District Court abused its discretion by refusing to appoint new counsel for Benson on the
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day of trial; (2) that trial counsel was ineffective in that he failed to subpoena
Mr. Gesualdo to testify; and (3) that the District Court erred in giving a supplemental jury
instruction regarding the interstate commerce element of the federal robbery offense. We
find all three arguments unavailing and will affirm.
The District Court considered each of these arguments in turn in connection with
Benson’s motion for new trial. The District Court not only held a hearing but wrote a
30-page comprehensive opinion addressing each aspect of each argument. We need not
restate here the District Court’s thoughtful, persuasive analysis, but will note only the key
elements that compel us to affirm as to each of appellant’s claims.
With respect to appellant’s first argument, namely, Benson’s request, on the day of
trial, for appointment of new counsel, we note that the District Court had already
appointed new counsel once before, based upon the same contention made by him on the
day of trial, i.e., a “breakdown in communication.” When Benson made this argument
with respect to trial counsel on the day of trial, the District Court inquired as to exactly
the nature of the communication breakdown. Counsel indicated that he and Benson had
discussed the case and the documents, and the judge then offered more time for them to
prepare for trial that afternoon. Not only did Benson not renew his objection, but he
indicated twice on the record that this proposal was “fair enough.” Accordingly, we agree
with the District Court that denial of substitution of counsel and of continuance of trial
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under these circumstances was not merely within the Court’s discretion, but well within
its discretion.1
With respect to appellant’s second argument, that counsel’s failure to subpoena
Mr. Gesualdo constituted ineffective assistance of counsel, the District Court analyzed
this argument in a thorough, thoughtful way. The District Court concluded that it
mattered little whether or not it was reasonable for counsel to have believed that the
government would subpoena Mr. Gesualdo, and whether or not it was reasonable that
counsel was somewhat confused as to the various Italian witnesses, because there clearly
was no prejudice, in that counsel could not have secured Mr. Gesualdo’s attendance at
trial. The District Court had ordered both counsel, before the trial, to try to subpoena
Mr. Gesualdo, but defense counsel had learned that Mr. Gesualdo had suffered a heart
attack and was in the hospital. (He died about a month after trial.) Accordingly, any
ineffectiveness, if indeed it was ineffectiveness, did not result in prejudice. Further,
Mr. Gesualdo’s testimony from the preliminary hearing was read into the record at trial
and may, in fact, have been stronger testimony than if he had been present at trial and
appeared frail. Benson’s ineffectiveness claim must therefore fail.
1
We need not repeat all of the case law supporting the District Judge’s ruling, as she
included ample authority in her opinion.
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The third argument raised by Benson, that the supplemental jury instruction
regarding the requisite effect on interstate commerce was improper, was similarly rejected
by the District Court. The District Court had given an initial instruction that had been
agreed upon by both sides. Thereafter the jury inquired as to a possible inconsistency
between certain words in the instruction, and the government proposed that the District
Court give a supplemental instruction that we referred to approvingly in United States v.
Haywood, 363 F.3d 200, 210 (3d Cir. 2004). Over defense counsel’s objection, the
District Court gave that supplemental instruction, which expanded upon the concept of
the effect on interstate commerce by noting that the effect could be “slight, subtle or even
potential.” While it is arguable that this instruction set forth a broader concept of “effect”
than had the previous instruction, this statement of the law was correct. While Benson
contends that this instruction introduced a new theory of liability, we disagree. Rather,
the instruction constituted a conceptual variation, ever so slight, from the instruction
previously given, and was clarifying in its content. Because it represented a correct
instruction under the law, we would have difficulty in overturning the District Court’s
resort to this instruction.
Accordingly, we will AFFIRM the Judgment and Conviction Order of the District
Court.
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