Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
4-22-2009
USA v. Gerald Birnie
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1944
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-1944
UNITED STATES OF AMERICA
v.
GERALD BIRNIE,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 2-07-cr-00582-1
District Judge: The Honorable Norma L. Shapiro
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
April 14, 2009
Before: McKEE, SMITH, Circuit Judges
and STEARNS, District Judge *
(Filed: April 22, 2009)
OPINION
STEARNS, District Judge.
Gerald Birnie appeals from his conviction and sentence for an attempted theft from
*
The Honorable Richard G. Stearns, District Judge for the United States District Court for
Massachusetts, sitting by designation.
an Automated Teller Machine (ATM), in violation of the bank larceny statute, 18 U.S.C. §
2113(d).1 Birnie was convicted after a trial before a jury on November 27, 2007. He was
sentenced by the District Court to twenty-one months of imprisonment.2 This timely appeal
followed. Birnie assigns three errors. First, he argues that the District Court erred in denying
his motion to suppress evidence. Next, he argues that the District Court erred in admitting
into evidence a plea agreement in a previous case in which Birnie admitted to stealing from
the same ATM. Finally, Birnie argues that there was insufficient evidence to support the
jury’s finding of guilt.
On March 9, 2007, an anonymous caller alerted police to a burglary in progress at an
ATM at Wachovia Bank in the 6400 block of Frankford Avenue in Philadelphia. At the
suppression hearing, Officer Christopher Lewis, an eighteen-year police veteran, testified
that at 6:20 a.m., he received a “flash” radio call that a “white male, dark, hooded jacket,
[was] breaking into the ATM machine.” Officer Lewis responded from a location two blocks
away. He arrived 30 seconds after receiving the report, driving on the wrong side of the
street. The sun was rising and visibility was good. There was little traffic on the street, and
the only pedestrians in the area were clustered around a nearby bus stop. Officer Lewis
testified that he saw a white male (Birnie) in front of the bank who fit the description
contained in the flash report.
Officer Lewis testified that as his patrol car came to a stop, Birnie stared fixedly in
1
We have jurisdiction to hear the appeal under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
2
The Court also imposed three years of supervised release, restitution in the amount of
$3,897, and a special assessment of $100.
2
his direction. Officer Lewis exited his cruiser, put his hand on his gun, and approached
Birnie, who appeared to be “a little nervous.” Officer Lewis took Birnie by the arm and
walked him towards the police car. As he did so, he conducted a quick pat-down search,
removing a screwdriver and a pair of pliers from Birnie’s jacket.
Officer Lewis asked Birnie to sit in the back of his police car. Birnie complied. After
other officers arrived at the scene, Officer Lewis inspected the ATM. He observed that the
ATM’s plastic casing was cracked and pulled out, and that scratch marks were visible around
the metal cash ejection slot.
At trial, the government introduced a bank surveillance video of Birnie loitering
outside the bank, the jacket that he had been wearing when he was first seen by Officer
Davis, the screwdriver and pliers seized from his jacket, the prior plea agreement, and
evidence of the damage to the ATM. Birnie called his grandmother as a witness. She
testified that she had given Birnie permission to use her ATM card that morning to withdraw
cash to pay for lunch and cigarettes. At the close of the evidence, Birnie moved for a
judgment of acquittal, arguing that the government had presented no direct evidence that he
had tampered with the ATM. The Court denied the motion, ruling that the government had
presented sufficient circumstantial evidence to support a finding of guilt.
1. The Motion to Suppress
Prior to trial, Birnie sought to suppress the incriminating tools taken from his person,
arguing that there was no documentary evidence to corroborate Officer Lewis’s testimony
that the flash report had contained a description of a suspect, and without that description the
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remaining facts did not support a finding of reasonable suspicion.3 The District Court denied
Birnie’s motion to suppress, finding that the totality of the circumstances justified an
investigative stop and pat-down search of his person.
We review the facts underlying the denial of a motion to suppress for clear error, and
exercise plenary review over the District Court’s legal conclusions. United States v. Ramos,
443 F.3d 304, 307 n.3 (3d Cir. 2006). The denial of a motion to suppress may be affirmed
on any ground supported by the record. United States v. Agnew, 407 F.3d 193, 196 (3d Cir.
2005).
“The Fourth Amendment does not require a policeman who lacks the precise level of
information necessary for probable cause to arrest to simply shrug his shoulders and allow
a crime to occur or a criminal to escape. . . . A brief stop of a suspicious individual, in order
to determine his identity or to maintain the status quo momentarily while obtaining more
information, may be most reasonable in light of the facts known to the officer at the time.”
Adams v. Williams, 407 U.S. 143, 145-146 (1972). See also United States v. Goodrich, 450
F.3d 552, 558-559 (3d Cir. 2006), citing Terry v. Ohio, 392 U.S. 1, 30 (1968). Reasonable
suspicion is a less exacting standard than probable cause. Alabama v. White, 496 U.S. 325,
330 (1990). “Based upon [the] whole picture the detaining officers must have a
particularized and objective basis for suspecting the particular person stopped of criminal
activity.” United States v. Cortez, 449 U.S. 411, 417-418 (1981).
3
The police log stated only that there was a “burglary in progress.” Officer Lewis’s hand-
written report did not mention a physical description.
4
Facts and circumstances are to be judged in their entirety in determining the
reasonableness of police conduct. In this regard, conduct that might be perceived as innocent
by a casual onlooker may in the totality of the circumstances appear suspicious to a trained
and experienced police officer. United States v. Arvizu, 534 U.S. 266, 273 (2002). “The test
is one of reasonableness given the totality of the circumstances, which can include [a
defendant’s] location, a history of crime in the area, [a defendant’s] nervous behavior and
evasiveness, and [an officer’s] common sense judgments and inferences about human
behavior.” Johnson v. Campbell, 332 F.3d 199, 206 (3d Cir. 2003).
If there is a reasonable basis for believing that a suspect poses a danger to police or
to others, he may be “frisked” (patted down) for possible weapons. Terry, 392 U.S. at 27.
“The purpose of this limited [Terry] search is not to discover evidence of crime, but to allow
the officer to pursue his investigation without fear of violence . . . .” Adams, 407 U.S. at 146.
To that end, the frisk may extend beneath a person’s outerwear if the officer feels a
suspicious object that could be a weapon. Terry, 392 U.S. at 22-25.
Contrary to Birnie’s assertion, the District Court did not reject Officer Lewis’s
testimony regarding the description of a suspect in the flash report. Rather, the Court stated
that
there’s some ambiguity in whether there actually was an identification of
someone as a white male wearing a dark jacket with a hood. . . . I believe that
the circumstances where it was, that it was a high crime area, that it was - -
although you’re entitled to walk the streets at 6 in the morning, and some
people do so innocently, that certainly goes to the totality of the circumstances.
The experienced officer saw him coming, saw him take special note of the
police car, and was concerned for his safety. He had a right to stop him and
ask him what he was doing. The guy said he’s just walking. He didn’t say he
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was going to get money on his grandmother’s ATM card, although he did have
it with him.
App. 142. We discern no error in the ruling. Even without a physical description, the
combination of Officer Lewis’s extensive experience, Birnie’s proximity to a reported crime
in progress, the absence of other pedestrians in the area, Birnie’s suspicious behavior in
staring at Officer Lewis, and his visible apprehension at Officer Lewis’s approach, gave rise
to a reasonable suspicion that Birnie was involved in criminal activity. Moreover, given the
nature of the reported crime, it was reasonable for Officer Lewis to believe that Birnie might
have a weapon in his possession (or burglar’s tools that could be wielded as weapons). We
conclude that the District Court did not err in ruling that Officer Lewis had reasonable
grounds to conduct an investigative stop and a pat-frisk of Birnie.
2. Evidence of Prior Acts
Next, Birnie argues that the District Court abused its discretion in permitting the
government to introduce evidence of Birnie’s conviction for burglarizing the same ATM
seven years earlier. In a plea agreement in that case, Birnie admitted to prying open the ATM
in January of 2000, and stealing $5,180 in cash. He also admitted to attempting a second
theft from the same ATM on February 12, 2000. In addition to this conviction, the
government sought to introduce evidence of fourteen other instances in which Birnie had
been convicted of larceny. The District Court excluded these convictions as overly
prejudicial.
As this Court has observed numerous times, “because the trial judge is present in the
courtroom as the challenged evidence is offered, and is therefore ‘in the best position to
6
assess the extent of the prejudice caused a party,’ the trial judge must ‘be given a very
substantial discretion in ‘balancing’ probative value on the one hand and ‘unfair prejudice’
on the other.’ For this reason, we review a district court’s balancing analysis pursuant to
Federal Rule 403 for an abuse of discretion, and accord great deference to the District
Court’s ultimate decision.” United States v. Universal Rehab. Svcs. (PA), Inc., 205 F.3d 657,
665 (3d Cir. 2000) (en banc) (citations omitted).
A trial court must weigh two issues when deciding whether to admit a prior
conviction: “first, whether the conviction is logically relevant under Rules 404(b) and 402
to any issue other than the defendant’s propensity to commit the crime [alleged]; [and]
second, if relevant, whether under Rule 403 the probative value of the evidence outweighs
its prejudicial effect.” United States v. Sampson, 980 F.2d 883, 886 (3d Cir. 1992).
Fed. R. Evid. 404(b) provides that
[e]vidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident . . . .
The Supreme Court has identified the following four guidelines for determining the
admissibility of prior bad act evidence: “(1) the evidence must have a proper purpose under
Rule 404(b); (2) it must be relevant under Rule 402; (3) its probative value must outweigh
its prejudicial effect under Rule 403; and (4) the court must charge the jury to consider the
evidence only for the limited purpose for which it is admitted.” Sampson, 980 F.2d at 886
(citing Huddleston v. United States, 485 U.S. 681, 691-692 (1988)).
7
Over Birnie’s objection, the District Court admitted the prior bank larceny conviction,
finding that “[i]t’s to show the plan, the intent, knowledge, absence of mistake or accident,
and that he had the knowledge of how to do it, the knowledge that there was an ATM
machine at the bank.” The Court gave the jury a timely and emphatic limiting instruction.
We find no abuse of the Court’s discretion. In light of the fact that Birnie’s prior conviction
involved the same ATM, the evidence was probative of his familiarity with the premises, and
his knowledge of how to carry out the robbery.
3. Sufficiency of the Evidence
Finally, Birnie argues that the evidence was insufficient to support his conviction
where there was no direct evidence that he tampered with the ATM. In assessing the jury’s
verdict, “our scope of review is limited to examining whether there is sufficient evidence to
support the verdict, drawing all reasonable inferences in favor of the verdict winner.” Le v.
Univ. of Penn., 321 F.3d 403, 406 (3d Cir. 2003). See also United States v. Brown, 3 F.3d
673, 680-681 (3d Cir. 1993) (we 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.”).
The evidence at trial amply supported the jury’s verdict. It showed that Birnie was
in the near vicinity of the bank immediately after the ATM was vandalized, that he was
carrying concealed burglar’s tools, that he was visibly apprehensive in Officer Lewis’s
presence, that he had earlier robbed the same bank, and that he had done so in a manner
consistent with the markings observed by Officer Lewis on the ATM. While this may be
8
circumstantial evidence, it is evidence nonetheless: it is by now well-settled that a conviction
may rest on circumstantial evidence alone. United States v. Boyle, 402 F.2d 757, 758 (3d Cir.
1968).
For the foregoing reasons, we will affirm Birnie’s conviction.
9