PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 10-3090
_______________
UNITED STATES OF AMERICA
v.
BARRON WALKER,
Appellant
_______________
No. 10-3210
_______________
UNITED STATES OF AMERICA
v.
BARRY WALKER,
Appellant
_______________
On Appeal from the United States District Court
For the Middle District of Pennsylvania
(D.C. Criminal Action No. 07-00263)
District Judge: Honorable Yvette Kane
_______________
Argued April 26, 2011
_______________
Before: SLOVITER and GREENAWAY, JR., Circuit
Judges, and POLLAK, District Judge*
(Opinion filed: September 13, 2011)
James J. West, Esq. (Argued)
105 North Front Street
Suite 205
Harrisburg, PA 17101
Counsel for Appellant Barron Walker
Jason B. Duncan, Esq. (Argued)
Stone, Duncan & Associates
8 North Baltimore Street
Dillsburg, PA 17019
Counsel for Appellant Barry Walker
Michael A. Consiglio, Esq. (Argued)
Eric Pfisterer, Esq.
Office of the United States Attorney
228 Walnut St., P.O. Box 11754
*
Honorable Louis H. Pollak, Senior Judge of the United
States District Court for the Eastern District of Pennsylvania,
sitting by designation.
2
220 Federal Building and Courthouse
Harrisburg, PA 17108
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
POLLAK, District Judge.
This consolidated criminal appeal arises from the
conviction, in August 2008, of two brothers, Barron Walker
and Barry Walker, for various federal drug trafficking,
firearm, and robbery charges. The Walker brothers were each
sentenced to prison terms of 47 ½ years. They now appeal
their convictions on several grounds.
I. Background
A. Indictment and Pre-Trial Motions
On June 27, 2007, defendants Barron Walker and
Barry Walker were each charged in a four-count indictment
for possession of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1)) (Count I); criminal conspiracy, in violation of 21
U.S.C. § 846 (Count II); possession of a firearm in
furtherance of drug trafficking, in violation of 18 U.S.C.
§ 924(c) (Count III); and possession of a firearm by a
prohibited person, in violation of 18 U.S.C. § 922(g) (Count
IV). The indictment alleged that these crimes occurred in
Harrisburg, Pennsylvania, during the weeks before May 31,
2007.
3
In a series of superseding indictments, the government
filed several additional charges against the Walkers.1
Ultimately, both Walkers were charged with attempted
robbery, in violation of the Hobbs Act, 18 U.S.C. § 1951(a)
(Count VI), and with using a firearm in furtherance of the
robbery, in violation of 18 U.S.C. § 924(c) (Count V), for
their involvement in the attempted robbery of a crack cocaine
dealer at gunpoint on May 31, 2007. Barry Walker, who was
ordered detained by the federal magistrate judge following
the attempted robbery, was also charged with escaping from
custody on July 10, 2007, in violation of 18 U.S.C. § 751(a)
(Count VII). When Barry Walker was re-arrested two days
later while sitting in a car, the arresting officers recovered
crack cocaine from his person and the car‘s passenger
admitted that Walker entered the vehicle to sell him crack
cocaine. As a result, Barry Walker was charged with an
additional count of possession with intent to distribute
cocaine base, in violation of 21 U.S.C. § 841(a) (Count VIII).
On August 20, 2007, defendant Barron Walker filed a
motion to sever for misjoinder based upon the escape charge
and the additional drug charge against his brother Barry. The
motion argued that joinder was improper under Federal Rule
of Criminal Procedure 8(b), and also argued, in the
alternative, that even if joinder were proper, the district court
should sever the trials pursuant to Federal Rule of Criminal
Procedure 14 to prevent prejudice to Barron. The district
court denied the motion on May 30, 2008, finding that joinder
was proper because ―the events of May 31, 2007, in which
1
The final superseding indictment also contained three
charges against Jason McNeil, who subsequently pled guilty
and testified against the Walker brothers at their trial.
4
both Barron and Barry are alleged to have participated, are
properly seen as a logical predicate to Barry‘s alleged escape,
and the escape, in turn, the culminating act ‗in the same series
of acts.‘‖ With respect to prejudice, the court held that the
jury would be able to ―compartmentalize the evidence that
Barry allegedly escaped custody, and give each defendant his
due.‖ The court also promised to instruct the jury to give
separate consideration to each charge against each defendant,
and later gave such an instruction at trial. Barron Walker
renewed the motion to sever at trial, and the court denied it
for the same reasons.
On August 6, 2008, five days before trial, the
government disclosed to defense counsel its intention to
prove the interstate commerce prong of the Hobbs Act
robbery charge through the testimony of Chief John Goshert
of the Dauphin County Criminal Investigation Division, a
thirty-year veteran of cocaine trafficking investigations in
Harrisburg and the region. The Walkers objected to the
testimony based on the timing of the government‘s notice of
its intent to call Goshert as an expert. The District Court
rejected this argument on the ground that the Walkers had not
requested expert notification pursuant to Rule 16 of the
Federal Rules of Criminal Procedure. The Walkers also
objected to Chief Goshert‘s testimony regarding the interstate
transportation of cocaine on the ground that it is possible to
manufacture cocaine synthetically. The District Court
rejected this argument and permitted Chief Goshert to testify
as an expert that in his experience cocaine is manufactured
outside of Pennsylvania.
B. Jury Trial
5
A joint jury trial for both Walker brothers was held
from August 11 to August 14, 2008.2 To prove the charges
that the Walkers were engaged in drug trafficking,
conspiracy, and possession of a firearm in furtherance of drug
trafficking during the weeks before May 31, 2007 (Counts I,
II, and III), the government presented testimony from several
witnesses, including (1) Jason McNeil, who pled guilty to
participating in the Hobbs Act robbery with the Walkers; (2)
Carmillia King, Barry Walker‘s girlfriend; and (3) Skylar
Rhoades, a confidential informant.
Only McNeil and Rhoades presented testimony
supporting the charge of possession of a firearm in
furtherance of drug trafficking in the weeks before May 31,
2007 (Count III). First, McNeil testified that the Walkers
were crack cocaine dealers, and that he had ridden along with
them as they drove through Harrisburg and made five to ten
sales to crack cocaine customers. He also testified that one of
the Walkers possessed a firearm during these deliveries.
While he believed that Barron Walker possessed the firearm,
he admitted that he was not ―positive‖ which brother
possessed it.
Second, Skylar Rhoades, the confidential informant,
testified that about two or three weeks before the May 31,
2007 robbery, he was with Jason McNeil‘s brother, John
McNeil, when John purchased crack cocaine from Barron and
Barry Walker. According to Rhoades, when the Walkers
arrived at the meeting place and got out of their vehicle, he
2
In the following paragraphs, we summarize only the
evidence presented at trial relevant to the disposition of this
appeal.
6
saw crack in the possession of Barron Walker. He also saw
Barry Walker deliver crack cocaine to John McNeil, and
observed a pistol on Barry Walker‘s hip. During cross-
examination, the defense extensively questioned Rhoades
concerning his motives to cooperate with the government and
the veracity of his testimony. At the close of trial, the District
Court gave a constructive possession instruction to the jury
for the gun possession charge.
To prove the Hobbs Act attempted robbery charge
(Count VI) and the use of a firearm in furtherance of a crime
of violence charge (Count V), the government presented
evidence3 that on May 31, 2007, the Walkers, along with
three friends—Jason McNeil, John McNeil, and James
Leeks—agreed to find street-level drug traffickers to rob of
their drugs and money. During the planning of the robbery,
the Walkers supplied a firearm to Jason McNeil to be used
during the robbery. The robbers then assembled in an
alleyway and watched Edward Wright, a crack cocaine
dealer, make a sale to a customer. John McNeil approached
Wright with his gun drawn and attempted to rob him, but
Wright took out his own firearm and fired. John and his
companions then opened fire on Wright. John and Wright
were both hit multiple times by gun shots; Wright survived,
but John died at the scene.
3
In support of these charges, the government presented
testimony from the target of the robbery, Edward Wright; two
participants in the robbery, James Leaks and Jason McNeil;
investigating law enforcement officers; several background
witnesses, and the confidential informant Skylar Rhoades.
7
To satisfy the Hobbs Act‘s requirement that the
defendants‘ conduct ―obstruct[ed], delay[ed] or affect[ed]
commerce,‖ see 18 U.S.C. § 1951(a), the government
presented testimony from two witnesses. The first witness
was the robbery victim, Edward Wright. Wright, who was
17-years-old at the time of the robbery, testified at trial that
he was only on the street for five minutes and had completed
his very first drug sale. He also testified that he obtained his
crack cocaine for $60 from someone with the street name
―Ice‖ whom he met outside a bar a day or two before, and that
he made about $40 or $50 by selling the cocaine he obtained
from Ice. Wright also didn‘t know anything about Ice,
including whether Ice lived in Harrisburg, and never saw him
before or after the purchase. In addition, Wright testified that
the Walkers and their accomplices did not succeed in actually
taking his crack cocaine, money, or gun from him.
The second witness was Chief John Goshert, the
government‘s expert on the interstate aspects of cocaine
trafficking. At trial, Goshert testified that, during his thirty
years in the drug investigation field, he was involved with
approximately 100 cocaine investigations a month, spoke
with drug traffickers on a daily basis, and regularly
participated in investigations involving the importation of
cocaine into the Harrisburg area. Goshert rendered the expert
opinion that cocaine is manufactured outside of Pennsylvania
and transported into the state. Goshert identified New York
City as the primary source for cocaine in the Harrisburg area.
He also testified that in his thirty years of experience, he had
never heard of synthetic cocaine being manufactured inside
Pennsylvania.
At the conclusion of the trial, the jury returned a
verdict finding both defendants guilty of distributing crack
8
cocaine (Count I), conspiring to distribute crack cocaine
(Count II), possessing a firearm in furtherance of the
distribution of crack cocaine (Count III), Hobbs Act robbery
(Count VI), and possessing of a firearm in furtherance of a
Hobbs Act robbery (Count V). The jury also found Barry
Walker guilty on the two counts arising from his escape
(Counts VII–VIII).4
C. Motion for a New Trial and Sentencing
A few weeks after trial, Assistant United States
Attorney Michael Consiglio, who had tried the case, wrote to
defense counsel to notify them of the following: On March 8,
2007, while Rhoades was working with the ATF as a
confidential informant on an unrelated case, agents met with
Rhoades for the purpose of arranging a purchase of crack
cocaine from a target in quantities of an ounce (28 grams) or
larger. When Rhoades arrived, the officers asked Rhoades to
change coats because the coat he was wearing would interfere
with audio recording they planned to conduct. One of the
agents retrieved a coat from the back of Rhoades‘ car and
searched the pockets. One of the pockets contained flakes of
marijuana and two loose rocks of cocaine base weighing 0.18
grams. Rhoades told the officers that the jacket was his, but
that the substances were old and that he did not know that
they were in the jacket.
Rhoades was not charged with any crimes for this
4
The prosecutor voluntarily dismissed Count IV, which
charged the Walkers with possession of a firearm after being
convicted of a crime punishable by more than one year
imprisonment.
9
incident, and the agents properly notified Consiglio at the
time, but Consiglio failed to remember the incident until after
the trial of this case. Upon being notified of this incident by
Consiglio, the defendants promptly filed a motion for a new
trial alleging that impeaching Brady material relating to an
important government witness was improperly withheld. The
District Court denied the motion for a new trial on the ground
that the defendants already effectively cross-examined
Rhoades at trial, making it unlikely that the jury would reach
a different result if the material had been handed over.
Thereafter, the District Court sentenced Barron Walker
to a term of 47 ½ years, consisting of 210 months on Counts
I, II, and VI to be served concurrently, a 60 month mandatory
minimum consecutive term on Count III (the first gun charge)
and a 300 month mandatory minimum consecutive term on
Count V (the second gun charge). The District Court also
sentenced Barry Walker to a term of 47 ½ years, consisting of
210 months on Counts I, II, VI, VII, and VIII to be served
concurrently, and 60 month and 300 month consecutive terms
for Counts III and V.
The Walkers now appeal on five principal grounds.5
First, Barron Walker argues that the District Court should
have granted his motion to sever because of the two
additional escape and drug charges against his brother Barry.
Second, both Walkers argue that there was insufficient
evidence to support their convictions for use of a firearm in
furtherance of drug distribution in the weeks before May 31,
5
The District Court had jurisdiction over this criminal case
under 18 U.S.C. § 3231, and we have jurisdiction over this
appeal pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
10
2007 (Count III). Third, the defendants argue that the District
Court erred by permitting the government‘s drug trafficking
expert, Chief Goshert, to testify. Fourth, the defendants argue
that there was insufficient evidence of an effect upon
interstate commerce to support their convictions under the
Hobbs Act (Count VI). Fifth, the defendants argue that the
District Court should have granted their motion for a new trial
in light of the fact that the prosecution withheld impeaching
Brady material concerning the confidential informant Skylar
Rhoades.
II. Severance
As noted above, while six of the eight charges in the
final superseding indictment were made against both Walker
brothers, the indictment charged Barry Walker alone with
escaping from custody on July 10, 2007 (Count VII), and
with possession with intent to distribute cocaine base on the
date of his re-arrest (Count VIII). In this appeal, Barron
Walker argues that the District Court erred in denying his
motions to sever pursuant to Federal Rules of Criminal
Procedure 8(b) and 14, which were based upon these charges
against his brother.
A. Rule 8(b)
Rule 8(b) governs the joinder of defendants in federal
criminal cases.6 ―The appeal of a denial of a Rule 8 motion
6
In full, Rule 8(b) states that:
11
[for improper joinder] is a claim of legal error, which we
review de novo.‖ United States v. Jimenez, 513 F.3d 62, 82
(3d Cir. 2008) (citing United States v. Eufrasio, 935 F.2d 553,
567 (3d Cir. 1991)). The ―inquiry into whether . . .
defendants were properly joined focuses upon the indictment,
not upon the proof that was subsequently produced at trial.‖
United States v. Irizarry, 341 F.3d 273, 287 (3d Cir. 2003)
(citation omitted). In construing this rule, this court has
followed the Supreme Court in recognizing the ―fundamental
principle that the federal system prefers ‗joint trials of
defendants who are indicted together [ ]‘ because joint trials
‗promote efficiency and serve the interests of justice by
avoiding the scandal and inequity of inconsistent verdicts.‘‖
United States v. Urban, 404 F.3d 754, 775 (3d Cir. 2005)
The indictment or information may charge 2 or
more defendants if they are alleged to have
participated in the same act or transaction, or in
the same series of acts or transactions,
constituting an offense or offenses. The
defendants may be charged in one or more
counts together or separately. All defendants
need not be charged in each count.
Rule 8(a) provides:
The indictment or information may charge a
defendant in separate counts with 2 or more
offenses if the offenses charged—whether
felonies or misdemeanors or both—are of the
same or similar character, or are based on the
same act or transaction, or are connected with
or constitute parts of a common scheme or plan.
12
(quoting Zafiro v. United States, 506 U.S. 534, 537 (1993)
(alteration in original)).
Rule 8(b) is ―less permissive‖ than Rule (8)(a), which
governs the joinder of counts against a single defendant.
Eufrasio, 935 F.2d at 570. We note, as a threshold matter,
that much as in Irizarry, Walker‘s ―focus on Rule 8(b) at first
appears misguided because Rule 8(b) authorizes joinder of
defendants and [Walker] is actually challenging the joinder of
allegedly unrelated offenses.‖ 341 F.3d at 287. However, we
have held that Rule 8(a) ―‗applies only to prosecutions
involving a single defendant‖ and that in a multi-defendant
case such as this, ‗the tests for joinder of counts and
defendants is merged in Rule 8(b).‘‖ Id. (quoting United
States v. Somers, 496 F.2d 723, 729 n.8 (3d Cir. 1974)).
Accordingly, we analyze Walker‘s misjoinder challenge
under Rule 8(b).
Under Rule 8(b), ―[i]t is not enough that defendants
are involved in offenses of the same or similar character;
there must exist a transactional nexus in that the defendants
must have participated in ‗the same act or transaction, or in
the same series of acts or transactions,‘ before joinder of
defendants in a multiple-defendant trial is proper.‖ Jimenez,
513 F.3d at 82-83 (quoting Fed. R. Crim. P. 8(b); citing
Irizarry, 341 F.3d at 287 n.4). Where charges leveled against
only a single defendant ―arose directly‖ from her participation
in a common illicit enterprise which led to charges against
that defendant and co-defendants, we have held that all of the
charges may be considered part of the same series of acts,
rendering joinder proper under Rule 8(b). United States v.
Riley, 621 F.3d 312, 334 (3d Cir. 2010) (―In this case, it was
Riley‘s failure to report income earned from the land fraud
scheme that led to her Tax Fraud Counts. Because the tax
13
evasion arose directly from the land fraud proceeds, it was in
the interest of judicial efficiency to join these claims.‖).
Barron Walker argues that joinder was improper
because the first four counts of the indictment, including the
conspiracy count, only covered conduct occurring before May
31, 2007, while the escape and additional drug charges
against Barry Walker were both based on conduct occurring
in July 2007. While a conspiracy count may serve as a link
justifying the joinder of various substantive offenses, see
Eufrasio, 935 F.2d at 567, joinder may still be proper in the
absence of a conspiracy count covering the time period for
every substantive offense if those substantive offenses were
part of the same series of transactions. In this case, the two
escape-related charges against Barry Walker were properly
joined because they arose directly from the earlier drug,
conspiracy, and gun charges. In so holding, we agree with
the analysis of Rule 8(b) by the district court in United States
v. Avila:
[T]he government may charge escape-related
crimes alongside underlying offenses if the two
are closely related to one another. This nexus
depends upon the temporal proximity between
the offenses, whether the defendant escaped to
evade prosecution for the underlying offense,
and whether the defendant was in custody for
the underlying offense at the time of the flight.
610 F. Supp. 2d 391, 395 (M.D. Pa. 2009) (citations omitted).
Barry Walker‘s evident purpose in escaping from
pretrial detention was to evade prosecution for the offenses
charged in the first four counts of the indictment. If it were
14
not for the underlying offenses, Walker would not have been
arrested and then able to escape from custody. Similarly, the
additional drug charge arose directly from the initial charges,
because at the time of Walker‘s re-arrest and the discovery of
cocaine on his person the police were searching for him in an
effort to return him to custody so that he could be tried for the
four charges then pending against him. We note, in addition,
that the short span of time between the initial offenses and the
two charges against Barry Walker—a period of a little over a
month—further suggests that the various charges were part of
the same series of transactions. Accordingly, we conclude
that the defendants were properly joined pursuant to Rule
8(b).
B. Rule 14
We review whether a motion for severance to prevent
prejudice should have been granted pursuant to Rule 14 under
an abuse of discretion standard. Riley, 621 F.3d at 334;
United States v. Davis, 397 F.3d 173, 182 (3d Cir. 2005).
While Rule 8 requires severance where defendants were
improperly joined, Rule 14 permits a district court ―to sever
properly joined defendants and order a separate trial where a
consolidated trial appears to prejudice the defendant.‖ Id. at
82 n.7; see also Fed. R. Crim. P. 14(a) (―If the joinder of
offenses or defendants in an indictment, an information, or a
consolidation for trial appears to prejudice a defendant or the
government, the court may order separate trials of counts,
sever the defendants‘ trials, or provide any other relief that
justice requires.‖). The district court may order severance to
prevent the ―serious risk that a joint trial would compromise a
specific trial right of one of the defendants, or prevent the
jury from making a reliable judgment about guilt or
innocence.‖ United States v. Reyeros, 537 F.3d 270, 287 (3d
15
Cir. 2008).
To prevail on a Rule 14 motion, a defendant must
―‗pinpoint clear and substantial prejudice resulting in an
unfair trial.‘‖ Riley, 621 F.3d at 335 (quoting United States v.
McGlory, 968 F.2d 309, 340 (3d Cir. 1992)). As a result, ―a
defendant is not entitled to a severance merely because
evidence against a co-defendant is more damaging than the
evidence against the moving party.‖ United States v. Lore,
430 F.3d 190, 205 (3d Cir. 2005) (internal quotation marks
omitted). Instead, the question of prejudice hinges upon
―whether the jury will be able to compartmentalize the
evidence as it relates to separate defendants in view of its
volume and limited admissibility.‖ Davis, 397 F.3d at 182.
Where additional charges against a single defendant are
―relatively straightforward and discrete,‖ we have ―not
doubt[ed] that the jury reasonably could have been expected
to compartmentalize the evidence . . . and actually did so.‖
Lore, 430 F.3d at 205. By contrast, ―[w]hen many defendants
are tried together in a complex case and they have markedly
different degrees of culpability, the risk of prejudice is
heightened.‖ Zafiro, 506 U.S. at 539.
We hold that the District Court did not abuse its
discretion by declining to grant Barron Walker‘s Rule 14
motion to sever. We reach this conclusion for two primary
reasons. First, although the defendants were brothers, they
were the only two defendants in a trial that lasted a total of
four days and that featured charges arising from only three
distinct episodes of criminal conduct. See Davis, 397 F.3d at
182 (―In this case, the facts are relatively simple; all the
events occurred in a single evening; there are only three
defendants; and there are no overly technical or scientific
issues. Therefore, we conclude that the jury could reasonably
16
have been expected to compartmentalize the evidence as it
related to each individual defendant.‖). With respect to the
escape-related counts, the evidence presented at trial
concerning Barry‘s escape and subsequent arrest was
relatively uncomplicated, suggesting that the jury would have
little trouble keeping it separate from the evidence against
Barron. Accordingly, the District Court did not abuse its
discretion in concluding that the jury would have been able to
compartmentalize the evidence presented against Barry
Walker with respect to the escape and the additional drug
charge.7 See id. (holding that jurors could compartmentalize
the conduct of a co-defendant who fled from scene of crime
from evidence regarding defendant who did not flee).
Second, the district judge instructed the jury that
―[e]ach offense and each defendant must be considered
separately.‖ The judge also told the jury that its ―decision on
any one defendant or any one offense, whether guilty or not
guilty, should not influence your decision on any other
defendant or any other offense.‖ We presume that the jury
followed those instructions, ―and thus we regard the
instructions as persuasive evidence that refusals to sever did
not prejudice the defendants.‖ Lore, 430 F.3d at 206 (internal
quotation marks and alteration omitted).
III. Use of a Firearm in Furtherance of Drug
Distribution
7
Moreover, even if the evidence against Barry Walker was
marginally stronger on certain joint counts, the defendants did
not have the kind of ―markedly different degrees of
culpability‖ that would suggest a heightened risk of prejudice.
Zafiro, 506 U.S. at 539.
17
The Walkers both argue that insufficient evidence
supported their convictions under Count III for the possession
of a firearm in furtherance of drug trafficking during the
weeks before May 31, 2007, in violation of 18 U.S.C. §
924(c).
In reviewing a motion for a judgment of acquittal due
to insufficient evidence pursuant to Federal Rule of Criminal
Procedure 29, we apply a ―particularly deferential standard . .
. because a reviewing court ‗must be ever vigilant . . . not to
usurp the role of the jury by weighing credibility and
assigning weight to the evidence.‘‖ United States v.
Mercado, 610 F.3d 841, 845 (3d Cir. 2010) (quoting United
States v. Boria, 592 F.3d 476, 480 (3d Cir. 2010)).
Accordingly, we must ―view the evidence in the light most
favorable to the prosecution and sustain the verdict unless it is
clear that no rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.‖
Id. (citing United States v. Cunningham, 517 F.3d 175, 177
(3d Cir. 2008)). We examine ―the totality of the evidence,
both direct and circumstantial,‖ United States v. Sparrow, 371
F.3d 851, 852 (3d Cir. 2004) (internal quotation marks
omitted), and only ―when the record contains no evidence,
regardless of how it is weighted, from which the jury could
find guilt beyond a reasonable doubt‖ will we reverse a jury
verdict for insufficiency of the evidence. United States v.
Mussare, 405 F.3d 161, 166 (3d Cir. 2005).
Under 18 U.S.C. § 924(c), it is a crime if an individual
uses or carries a firearm during and in relation to a drug
trafficking crime, or possesses a firearm in furtherance of
18
such a crime.8 To obtain a conviction under § 924(c), ―the
‗mere presence‘ of a gun is not enough.‖ Sparrow, 371 F.3d
at 853. Rather, the government must present evidence
―specific to the particular defendant, showing that his or her
possession actually furthered the drug trafficking offense.‖
Id. (internal quotation marks omitted). In other words, ―the
government must show that the defendant possessed the
firearm ‗to advance or promote criminal activity.‘‖ United
States v. Iglesias, 535 F.3d 150, 157 (3d Cir. 2008) (quoting
United States v. Bobb, 471 F.3d 491, 496 (3d Cir. 2006)). In
determining whether a firearm was possessed in furtherance
of drug trafficking, we have looked to the following
nonexclusive factors:
the type of drug activity that is being conducted,
accessibility of the firearm, the type of the
weapon, whether the weapon is stolen, the
status of the possession (legitimate or illegal),
whether the gun is loaded, proximity to drugs or
drug profits, and the time and circumstances
8
See 18 U.S.C. § 924(c)(1)(A) (―[A]ny person who, during
and in relation to any crime of violence or drug trafficking
crime (including a crime of violence or drug trafficking crime
that provides for an enhanced punishment if committed by the
use of a deadly or dangerous weapon or device) for which the
person may be prosecuted in a court of the United States, uses
or carries a firearm, or who, in furtherance of any such crime,
possesses a firearm, shall, in addition to the punishment
provided for such crime of violence or drug trafficking crime
be sentenced to [various punishments described].‖).
19
under which the gun is found.
Sparrow, 371 F.3d at 853 (3d Cir. 2004) (quoting United
States v. Ceballos–Torres, 218 F.3d 409, 414–15 (5th Cir.
2000)); see also Bobb, 471 F.3d at 496-97 (applying Sparrow
factors).
We have also recognized that § 924(c) may be violated
through the constructive possession of a firearm. See
Cunningham, 517 F.3d at 178. We have defined constructive
possession as follows:
―Constructive possession exists if an individual
knowingly has both the power and the intention
at a given time to exercise dominion or control
over a thing, either directly or through another
person or persons. Constructive possession
necessarily requires both dominion and control
over an object and knowledge of that object‘s
existence.‖
Id. (quoting United States v. Iafelice, 978 F.2d 92, 96 (3d Cir.
1992)). Constructive possession may be proved by either
direct or circumstantial evidence, and it need not be exclusive
to a single person. Iglesias, 535 F.3d at 156.
We hold that the evidence presented at trial, viewed in
the light most favorable to the prosecution, was sufficient to
sustain both Walkers‘ § 924(c) convictions. The strongest
evidence supporting these charges was the testimony of
Skylar Rhoades, the confidential informant, who stated that
he observed Barry Walker in actual possession of a gun
during a drug sale in which the Walker brothers participated:
20
I was with Jason McNeil. . . . We drove up. I
looked into the [Walkers‘] Expedition. I see
Barron and Barry Walker both inside the
Expedition. Barry gets out. I could see the gun
on his waistband, and I could see Barron with
crack cocaine on his lap. They g[a]ve . . . John
McNeil about a quarter to an eightball of crack
cocaine, and then that‘s when I took down the
license plate to the Expedition to [transmit] it
back to [law enforcement.]
Based on this direct eyewitness testimony, a rational juror
could readily conclude that Barry Walker actually possessed a
firearm at the time of the cocaine sale. 9 Further, a rational
juror could infer that Barry Walker possessed the firearm in
order to ―advance or promote‖ the illegal sale. Iglesias, 535
F.3d at 157. Several of the Sparrow factors favor such an
inference: Barry Walker, together with his brother, engaged
in the sale of crack cocaine, an illegal and dangerous drug;
the firearm—located on Barry‘s hip—was readily available in
the event he needed it for protection during the sale; the
firearm was in close proximity to the cocaine that was handed
9
Barry Walker mistakenly seeks support from the Supreme
Court‘s decision in Bailey v. United States, 516 U.S. 137,
143 (1995), which held that mere possession of a firearm is
not sufficient to support a conviction under § 924(c). As the
Supreme Court has recognized, Congress amended § 924 in
1998 to add the word ―possess‖ to the statute, thus
overturning Bailey. See United States v. O’Brien, 130 S. Ct.
2169, 2179 (2010).
21
to John McNeil; and the firearm was in Barry Walker‘s
possession throughout the course of the transaction. See
Sparrow, 371 F.3d at 853.
While there is no evidence in the record concerning
certain factors—it is uncertain, for example, whether Barry
Walker‘s gun was stolen and whether it was loaded during the
sale—our prior decisions have not required that every single
factor must weigh in favor of conviction. See Sparrow, 371
F.3d at 853-54 (upholding conviction where ―many of the . . .
factors are satisfied‖ and holding that ―immediate
accessibility at the time of search or arrest is not a legal
requirement for a § 924(c) conviction‖); Bobb, 471 F.3d at
496 (upholding conviction where the evidence was ―sufficient
to find a nexus between the possession of the gun and the
drug trafficking, and to satisfy many of the [Sparrow]
factors‖). Accordingly, we conclude that the prosecution
presented enough evidence that a rational jury could conclude
that Barry Walker not only actually possessed a firearm, but
did so in furtherance of drug trafficking.
The evidence against Barron Walker on the § 924(c)
charge was also sufficient to sustain his conviction. Barron‘s
conviction was supported by the testimony of both Jason
McNeil and Skylar Rhoades.10 While being questioned by
the prosecution, McNeil testified that he accompanied the
Walkers as they drove through Harrisburg and made five to
10
The defendants claim that the ―entire case‖ for the
prosecution consisted of the testimony of confidential
informant Skylar Rhoades. This is incorrect: as noted in the
remainder of the paragraph above, the testimony of Jason
McNeil also supported the jury‘s verdict on this count.
22
ten deliveries of crack cocaine to customers. McNeil then
explained that he saw the Walkers with firearms during these
deliveries. When asked who had a firearm, he said ―I think it
was Barron.‖ When questioned further on cross-examination,
he admitted that he was not ―positive‖ that Barron actually
possessed the firearm.
Standing alone, this testimony might be insufficient to
sustain Barron‘s conviction, because the witness himself had
some doubt about whether Barron had the firearm on his
person. However, this evidence does not stand alone: Skylar
Rhoades testified that he saw Barron and Barry arrive
together in the same vehicle, that Barron had cocaine in his
possession, and that Barron and Barry jointly made a cocaine
sale while Barry wore a gun on his hip.
A rational juror, considering the testimony of Rhoades
and McNeil together, could conclude that Barron at the very
least had constructive possession of a firearm during the
brothers‘ drug sales. During the cocaine sale witnessed by
Rhoades, the gun on Barry‘s hip was readily visible to
Rhoades, supporting the inference that it was also visible to
Barron, who was a joint participant in the sale. Accordingly,
the jury could rationally have concluded that Barron knew
that Barry possessed the firearm, rendering this case
distinguishable from our § 924(c) decisions involving guns in
closed containers. See Cunningham, 517 F.3d at 179 (holding
that defendant did not constructively possess gun in his
companion‘s backpack where the ―evidence did not
demonstrate that [the defendant] knew about the gun‖
(internal quotation marks omitted)); United States v. Garth,
188 F.3d 99, 112 (3d Cir. 1999) (holding that defendant who
was unaware that his co-defendants possessed a firearm in a
black bag did not constructively possess it). The jury could
23
likewise have reasonably concluded that Barron had the
intention to exercise dominion over the firearm through
Barry, because the firearm provided protection to both of
them during their sales. See Iafelice, 978 F.2d at 96
(constructive possession exists ―if an individual knowingly
has both the power and the intention at a given time to
exercise dominion or control over a thing, either directly or
through another person or persons‖ (emphasis added)).
Moreover, as we noted in Iafelice, ―[c]ommon sense counsels
that an owner and operator of a vehicle usually has dominion
and control over the objects in his or her vehicle of which he
or she is aware.‖ Id. at 97. In this case, Barry was observed
with the gun as he exited the Walkers‘ vehicle, strengthening
the conclusion that Barron was both aware of the gun and
exercised a level of indirect control sufficient to support the
verdict.11
For similar reasons, there was sufficient evidence for
the jury to conclude that Barron‘s constructive possession of a
firearm was in furtherance of a drug trafficking crime.
During the sale witnessed by Rhoades, Barron had cocaine in
11
Barron‘s attempt to rely upon United States v. Jenkins, 90
F.3d 814 (3d Cir. 1996), is unpersuasive. In Jenkins, police
discovered the defendant in an acquaintance‘s apartment
sitting in front of a coffee table that contained guns, bags of
cocaine, scales, and other drug paraphernalia. This court
found that there was insufficient evidence that the defendant
had constructive possession of these items where no drug
residue was found on him and his fingerprints were not found
on the drugs. Id. at 818. In this case, by contrast, two
eyewitnesses testified that Barron jointly participated in
cocaine sales with Barry.
24
his lap, and then jointly participated in a sale of cocaine with
Barry while Barry was carrying a gun. The firearm on
Barry‘s hip was easily accessible in case both Walkers needed
it for protection. Barron and Barry arrived in the same
vehicle, putting Barron in close proximity to the firearm both
before and during the sale. Because Rhoades was able to see
the gun on Barry‘s hip, the jury could infer that the gun was
also visible to Barron. Together, this evidence was enough to
show that Barron‘s constructive possession of the gun
advanced his illegal drug activity. See Sparrow, 371 F.3d at
853 (noting relevance of ―the type of drug activity that is
being conducted,‖ the ―accessibility of the firearm,‖ and the
―proximity to drugs or drug profits‖).
Accordingly, while the prosecution‘s case on these
charges was not overwhelming, we conclude that the
evidence presented on the § 924(c) charges was sufficient to
sustain the defendants‘ convictions.
IV. Hobbs Act Expert Testimony
At trial, the government‘s expert on cocaine
trafficking, Chief Goshert, rendered the opinion that cocaine
is manufactured outside of Pennsylvania and transported into
the state. In this appeal, the Walkers argue that the District
Court erred in allowing Goshert to testify in support of the
Hobbs Act charge.
First, the Walkers argue that the prosecution failed to
give them timely notice of the expert testimony. The
government first notified the defense of its intent to call
Goshert on August 6, 2008, five days before trial, and
volunteered to provide a summary of his testimony to the
defense. Defense counsel objected to the testimony, claiming
25
that the government should have given them more notice that
Goshert would be called as an expert. The District Court
rightly rejected this argument on the ground that the
defendants had not requested expert notification pursuant to
Rule 16 of the Federal Rules of Criminal Procedure. See Fed.
R. Crim. P. 16(a)(1)(G) (―At the defendant’s request, the
government must give to the defendant a written summary of
any testimony that the government intends to use under Rules
702, 703, or 705 of the Federal Rules of Evidence during its
case-in-chief at trial.‖ (emphasis added)); United States v.
Davis, 397 F.3d 173, 178 (―[T]he government must disclose,
upon a defendant’s request, ‗a written summary of any
testimony that the government intends to use.‘‖ (emphasis
added) (quoting Fed. R. Crim. P. 16(a)(1)(G)).12
Second, the Walkers argue that Chief Goshert should
not have been allowed to testify that cocaine is manufactured
outside of Pennsylvania and transported into the state.
Specifically, the Walkers argue that Goshert‘s testimony was
unreliable because Wright could have possessed synthetic
cocaine manufactured in Pennsylvania. The Walkers point
out that recipes for synthetic cocaine are readily available on
the internet, and they also cite a series of court decisions from
12
Barry Walker also argues that he filed a pro se motion to
compel discovery on May 27, 2008, in which he requested
information regarding expert testimony. However, as Barry
Walker acknowledges, that pro se motion was stricken by the
District Court on June 3, 2008, and forwarded to counsel of
record. Id. Thus, the request was not properly made to the
government.
26
the 1970s and 1980s which recognized that cocaine could be
manufactured domestically. The Walkers also note that
Goshert admitted during his testimony that he is unable to
distinguish synthetic cocaine from cocaine made from cocoa
plants.
We review a district court‘s decision to admit expert
testimony for abuse of discretion and exercise plenary review
over a district court‘s legal interpretation of Rule 702 of the
Federal Rules of Evidence. United States v. Mitchell, 365
F.3d 215, 233 (3d Cir. 2004). ―An expert witness may be
permitted to testify regarding ‗scientific, technical, or other
specialized knowledge‘ if it ‗will assist the trier of fact to
understand the evidence or to determine a fact in issue.‘‖
United States v. Mornan, 413 F.3d 372, 380 (3d Cir. 2005)
(quoting Fed. R. Evid. 702). Under Rule 702, a witness may
qualify as an expert if three requirements are satisfied: ―(1)
the testimony must be ‗based upon sufficient facts or data‘;
(2) the testimony must be ‗the product of reliable principles
and methods‘; and (3) the witness must have ‗applied the
principles and methods reliably to the facts of the case.‘‖ Id.
(quoting Fed. R. Evid. 702). In cases not involving scientific
testimony, courts must still serve the gatekeeping function
described in Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579 (1993), but ―‗the factors identified in Daubert may or
may not be pertinent in assessing reliability, depending on the
nature of the issue, the expert‘s particular expertise, and the
subject of his testimony.‘‖ Betterbox Commc’ns Ltd. v. BB
Techs., Inc., 300 F.3d 325, 329 (3d Cir. 2002) (quoting
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999)).
In such cases ―‗the relevant reliability concerns may focus
upon personal knowledge or experience.‘‖ Id. (quoting
Kumho Tire, 526 U.S. at 150).
27
The Walkers argue that Goshert, who acknowledged at
trial that he is not a chemist and is unable to distinguish
ordinary cocaine from synthetic cocaine, did not have the
requisite expertise to testify about the geographic origins of
the cocaine in Pennsylvania. We disagree. Goshert‘s
testimony was based upon his thirty years of experience
working as a narcotics investigator in Harrisburg,
Pennsylvania. Goshert testified that during that time period
he regularly participated in investigations involving the
importation of cocaine into the Harrisburg area, that he spoke
with drug traffickers on a daily basis, and that he had worked
with a variety of other law enforcements agencies, including
the Drug Enforcement Administration and New York Police
Department. He also testified that he had taught courses and
seminars on drug trafficking and drug identification to new
and experienced police officers, to the Pennsylvania District
Attorney‘s Association, and to community groups. Upon
being qualified as an expert, Goshert identified New York
City as the primary source for cocaine in the Harrisburg area,
and testified that in his thirty years of investigating cocaine
cases he had never had a single law enforcement agent,
informant, drug trafficker, or other individual indicate that
cocaine was manufactured inside Pennsylvania.
We agree with the District Court that Goshert‘s
method for reaching these conclusions was reliable. Our
court has previously recognized that law enforcement
officials can rely upon their specialized knowledge or
experience to offer expert testimony on various aspects of
drug trafficking. See, e.g., United States v. Perez, 280 F.3d
318, 342 (3d Cir. 2002) (expert opinion on how drug
traffickers use cellular telephones and pagers); United States
v. Gibbs, 190 F.3d 188, 211 (3d Cir. 1999) (expert testimony
28
on coded drug language). We have also recognized that law
enforcement officers may, given the proper experience, testify
in a Hobbs Act case regarding whether goods had originally
been produced in another state. See United States v.
Haywood, 363 F.3d 200, 210–11 (3d Cir. 2004) (holding that
police officer who was a resident of the Virgin Islands had
sufficient knowledge to testify that beer sold by bar originated
in the mainland United States).
Goshert‘s expert opinions were based upon his
personal experiences interacting with drug traffickers and law
enforcement personnel over a period of decades. During that
time, he had numerous opportunities to investigate the
geographic origins of the cocaine sold in Harrisburg.
Accordingly, he did not need to be a professional chemist in
order to gather reliable information on whether cocaine was
being produced inside Pennsylvania or instead being
produced elsewhere and transported into Pennsylvania. See
Betterbox, 300 F.3d at 328–29 (noting that specialized
knowledge can be based upon ―practical experience as well as
academic training and credentials‖ (internal quotation marks
omitted)).
We also hold that Goshert‘s expert testimony was not
rendered unreliable by the evidence the defense presented
regarding the possibility of manufacturing cocaine
synthetically. Although it may be possible to find recipes for
synthetic cocaine on the internet, the defense presented no
evidence that synthetic cocaine has, at any time in the recent
past, actually been manufactured in Pennsylvania. Further,
although the Walkers cite to a series of court decisions from
the 1970s and 1980s which recognized that cocaine can be
manufactured domestically, none of these cases involved
conduct occurring in Pennsylvania, or conduct that occurred
29
in the last twenty years. See Turner v. United States, 396
U.S. 398 (1970);13 United States v. Whaley, 779 F.2d 585
(11th Cir. 1986); United States v. Lamoureux, 711 F.2d 745
(6th Cir. 1983). Indeed, more recent cases have suggested
that it is common knowledge that cocaine is imported into the
United States from Latin America. See United States v.
Gomez, 580 F.3d 94, 102 (2d Cir. 2009) (―The importation
and interstate transportation of cocaine, as well as the
financial size of the cocaine trade, have been routinely and
copiously discussed by public officials, candidates for office,
and the news media for decades.‖).14
13
In Turner, the Supreme Court struck down a statute which
provided that a person found to possess cocaine shall be
presumed to have imported it. See 396 U.S. at 418. The
Court, surveying the evidence as it existed in 1970, found that
―much more cocaine is lawfully produced in this country than
is smuggled into this country.‖ Id. No similar statutory
presumption of importation exists under the Hobbs Act, and
the government did not attempt to suggest that the jury should
entertain such a presumption. Moreover, the Supreme
Court‘s factual finding that, in 1970, more cocaine was
produced domestically than imported does not bar later courts
from recognizing that patterns of production and distribution
have changed. Thus, in this case, the government presented
expert testimony establishing that cocaine is currently
imported from out of state and is not manufactured in
Pennsylvania.
14
The parties assume, as do we for purposes of this appeal,
that the place of origin of cocaine is sufficiently technical in
nature to be the subject of expert testimony under Rule 702.
But see United States v. Needham, 604 F.3d 673, 680 (2d Cir.
30
Accordingly, we agree with the government that the
District Court did not abuse its discretion in determining that
Chief Goshert‘s testimony regarding the interstate
transportation of cocaine was reliable.
V. Hobbs Act Interstate Commerce Element
The Walkers challenge whether the government‘s
evidence was sufficient to satisfy the interstate commerce
element of their Hobbs Act convictions. They note that the
target of their attempted robbery, Edward Wright, had just
completed his first-ever drug sale at the time of the robbery,
had purchased the illegal drugs locally for about $60, and had
made about $40 to $50 from his single sale. They also argue
that the government presented insufficient evidence that
Wright‘s cocaine was manufactured outside of Pennsylvania.
We begin with first principles. The Constitution
delegates to Congress the power ―[t]o regulate Commerce
with foreign Nations, and among the several States, and with
the Indian Tribes.‖ U.S. Const. art. I, § 8, cl. 3. Congress‘
power to legislate pursuant to the Commerce Clause, although
―greatly expanded‖ by the Court‘s New Deal-era commerce
power decisions, is nonetheless ―subject to outer limits.‖
United States v. Lopez, 514 U.S. 549, 556–57 (1995) (citing
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937);
United States v. Darby, 312 U.S. 100 (1941); Wickard v.
Filburn, 317 U.S. 111 (1942)). In Lopez, the Court identified
the three areas within which Congress is authorized to
2010) (holding that ―a jury is capable of concluding, based on
its lay knowledge, that cocaine is imported into the United
States‖ (citing Gomez, 580 F.3d at 102)).
31
regulate pursuant to the Commerce Clause: (1) ―the use of the
channels of interstate commerce;‖ (2) ―the instrumentalities
of interstate commerce, or persons or things in interstate
commerce, even though the threat may come only from
intrastate activities;‖ and (3) ―those activities having a
substantial relation to interstate commerce.‖ Id. at 558–59.
Focusing on the third category, the Lopez Court struck
down the Gun-Free School Zones Act of 1990, holding that
―possession of a gun in a local school zone is in no sense an
economic activity that might, through repetition elsewhere,
substantially affect any sort of interstate commerce.‖ Id. at
567. To reach any other conclusion, the Count held, would
require it to ―pile inference upon inference in a manner that
would bid fair to convert congressional authority under the
Commerce Clause to a general police power of the sort
retained by the States.‖ Id.
The Court‘s decision in Lopez was followed by United
States v. Morrison, which struck down the civil remedy
provision in the Violence Against Women Act using
reasoning that closely echoed that in Lopez. See 529 U.S.
598, 617 (2000) (holding that Congress may not ―regulate
noneconomic, violent criminal conduct based solely on that
conduct‘s aggregate effect on interstate commerce‖).
Morrison, in turn, was followed by Gonzales v. Raich, which
rejected a Commerce Clause challenge to the application of
provisions of the Controlled Substances Act criminalizing the
manufacture, distribution, and possession of marijuana to
intrastate growers and users of marijuana for medicinal
purposes. 545 U.S. 1 (2005). In so holding, the Court
emphasized that Congress possesses ―power to regulate
purely local activities that are part of an economic ‗class of
activities‘ that have a substantial effect on interstate
32
commerce.‖ Id. at 17. Congress is not required:
to legislate with scientific exactitude. When
Congress decides that the total incidence of a
practice poses a threat to a national market, it
may regulate the entire class. In this vein . . .
when a general regulatory statute bears a
substantial relation to commerce, the de minimis
character of individual instances arising under
that statute is of no consequence.
Id. (internal quotation marks and citations omitted).
We have recognized that this trio of commerce power
decisions establishes a four-part analytical framework ―‗to
determine whether a law regulates intrastate activity that has a
substantial effect on interstate commerce.‘‖ United States v.
Kukafka, 478 F.3d 531, 535 (3d Cir. 2007) (quoting United
States v. Gregg, 226 F.3d 262 (3d Cir. 2000)). Under this
framework, ―a court should consider: (1) ‗the economic
nature of the regulated activity;‘ (2) ‗a jurisdictional element
limiting the reach of the law to a discrete set of activities that
additionally has an explicit connection with or effect on
interstate commerce;‘ (3) ‗express congressional findings
regarding the effects upon interstate commerce of the activity
in question;‘ and (4) ‗the link between the regulated activity
and interstate commerce.‘‖ Id. at 535–36 (quoting Gregg,
226 F.3d at 262); see also United States v. Spinello, 265 F.3d
150, 155–56 (3d Cir. 2001).
To obtain a conviction under the Hobbs Act, the
government must show that (1) the defendant committed
―robbery or extortion‖ or attempted or conspired to do so, and
(2) that conduct ―obstruct[ed], delay[ed], or affect[ed]
33
commerce or the movement of any article or commodity in
commerce.‖ 18 U.S.C. § 1951(a). The Hobbs Act defines the
term ―commerce‖ broadly to include ―all . . . commerce over
which the United States has jurisdiction.‖ 18 U.S.C. §
1951(b)(3); see also Stirone v. United States, 361 U.S. 212,
215 (1960) (―[The Hobbs Act] speaks in broad language,
manifesting a purpose to use all the constitutional power
Congress has to punish interference with interstate commerce
by extortion, robbery or physical violence.‖). Accordingly,
the reach of the Hobbs Act is ―coextensive with that of the
Commerce Clause of the United States Constitution.‖ United
States v. Parkes, 497 F.3d 220, 230 n.8 (2d Cir. 2007)
(internal quotation marks and citation omitted); see also
United States v. Villafranca, 260 F.3d 374, 377 (noting that
―the Hobbs Act‘s required effect on interstate commerce is
identical with the requirements of federal jurisdiction under
the Commerce Clause‖ (citation omitted)).
The Hobbs Act differs from the statutes struck down in
Lopez and Morrison in two crucial respects. First, the Hobbs
Act contains a ―jurisdictional element‖ which limits its scope.
That is, the Hobbs Act ―only applies to crimes which
‗obstruct[ ], delay[ ], or affect[ ] commerce or the movement
of any article or commodity in commerce.‘‖ United States v.
Clausen, 328 F.3d 708, 710 (3d Cir. 2003) (quoting 18 U.S.C.
§ 1951(a)). Second, the Hobbs Act regulates quintessentially
―economic‖ activities. Although drawing the line between
―economic‖ and ―non-economic‖ activities may sometimes be
difficult, property crimes like robbery and extortion are—
unlike the possession of a gun in a school zone or gender-
motivated violence—indisputably ―economic‖ under our
post-Lopez precedents. See United States v. Bishop, 66 F.3d
569, 581 (3d Cir. 1995) (―[C]arjacking is economic . . . .
34
When a criminal points a gun at a victim and takes his or her
car, the criminal has made an economic gain and the victim
has suffered an undeniable and substantial loss.‖); Spinello,
265 F.3d at 156 (describing bank robbery as an ―‗economic‘
activity almost by definition‖); United States v. Whited, 311
F.3d 259, 268 (3d Cir. 2002) (―[T]heft in connection with
health care . . . is economic in nature. The theft itself is
motivated exclusively by an immediate pecuniary gain, and
effects an explicit economic transfer.‖ (citations omitted)).
Because of the fundamentally economic character of
robbery and extortion, we have held, in the wake of Lopez
and its progeny, that in Lopez category-three cases15 the
government is not required to present ―proof of a ‗substantial
effect‘ on commerce in an individual case in order to show a
Hobbs Act violation.‖ Urban, 404 F.3d at 766 (citing
Clausen, 328 F.3d at 711); accord Raich, 545 U.S. at 17
(holding that Congress possesses the ―power to regulate
15
As noted above, category three encompasses ―those
activities having a substantial relation to interstate
commerce.‖ 514 U.S. at 558-59. Because the parties have
not suggested that this case falls under the second Lopez
category, which permits Congress to regulate ―the
instrumentalities of interstate commerce, or persons or things
in interstate commerce, even though the threat may come
only from intrastate activities,‖ id. at 558, we do not address
its applicability to this case. As discussed below, however,
we do find the fact that the cocaine the Walkers targeted
originated outside Pennsylvania relevant to the category-three
inquiry of whether there was a sufficiently close ―link
between the regulated activity and interstate commerce.‖
Kukafka, 478 F.3d at 536.
35
purely local activities that are part of an economic ‗class of
activities‘ that have a substantial effect on interstate
commerce‖). As we noted in Clausen, ―‗the cumulative result
of many Hobbs Act violations is a substantial effect upon
interstate commerce,‘ and that substantial effect empowers
Congress to regulate pursuant to the Commerce Clause.‖ 328
F.3d at 711 (quoting United States v. Robinson, 119 F.3d
1205, 1215 (5th Cir. 1997)); see also Urban, 404 F.3d at 765
(noting that ―‗legislation concerning an intrastate activity will
be upheld if Congress could rationally have concluded that
the activity, in isolation or in the aggregate, substantially
affects interstate commerce‘‖ (quoting Robinson, 119 F.3d at
1211)).
Accordingly, we have held that in a Hobbs Act
prosecution, ―‗proof of a de minimis effect on interstate
commerce is all that is required.‘‖ Urban, 404 F.3d at 766
(quoting Clausen, 328 F.3d at 711). We have also upheld
jury instructions which state that the ―‗de minimis effect‘ in
an individual Hobbs Act case need only be ‗potential.‘‖ Id. at
766 (quoting Haywood, 363 F.3d at 209–10); see also
Haywood, 363 F.3d at 209-10 (―‗[I]f the defendants‘ conduct
produces any interference with or effect upon interstate
commerce, whether slight, subtle or even potential, it is
sufficient to uphold a prosecution under [§ 1951].‘‖ (quoting
Jund v. Town of Hempstead, 941 F.2d 1271, 1285 (2d Cir.
1991))).
The Walkers make several arguments in support of
their insufficiency claim. First, they emphasize that the
robbery victim, Edward Wright, had purchased only $60
worth of crack cocaine, and had made only a single sale for
about $40 to $50 at the time of the robbery. While Wright
did indeed possess only a small amount of cocaine and cash,
36
we have found the de minimis standard satisfied in similarly
low-stakes robberies. See Haywood, 363 F.3d at 202, 211 n.7
(holding that ―interstate commerce was affected, however
minimally‖ by the robbery of $50 to $70 in cash from a bar).
Second, the Walkers argue that the evidence was
insufficient to demonstrate that Wright‘s cocaine originated
from outside of Pennsylvania. As discussed in the prior
section, the government presented reliable expert testimony
from Chief Goshert that the cocaine sold in Harrisburg is
manufactured outside of Pennsylvania and transported into
the state. This case is therefore distinguishable from cases
involving marijuana in which the government‘s evidence that
the marijuana was grown out of state was more equivocal.
See United States v. Peterson, 236 F.3d 848, 853–54 (7th Cir.
2001) (noting DEA agent‘s testimony that brick marijuana
did not ―normally‖ originate in Indiana, but that it was
―possible‖ but ―highly unlikely‖ the marijuana was grown in
Indiana). Accordingly, a rational juror could conclude from
Goshert‘s testimony that Wright‘s cocaine was not produced
in Pennsylvania.
Third, the Walkers argue that their convictions should
be overturned because they robbed a ―private citizen‖ rather
than a business. In making this argument, the Walkers cite to
the Sixth Circuit‘s decision in United States v. Wang, 222
F.3d 234 (6th Cir. 2000). Wang is one of several decisions by
our sister circuits holding that the government may not
demonstrate that the robbery of a private individual‘s
personal property affected interstate commerce based solely
on evidence that the victim was employed by a company
operating in interstate commerce. See id. at 239 (―[A] small
sum stolen from a private individual does not, through
aggregation, affect interstate commerce merely because the
37
individual happens to be an employee of a national company .
. . .‖); United States v. Perrotta, 313 F.3d 33, 36 (2d Cir.
2002) (―[T]he government must show something more than
the victim‘s employment at a company engaged in interstate
commerce to support Hobbs Act jurisdiction.‖); United States
v. Collins, 40 F.3d 95, 100 (5th Cir. 1994) (overturning
Hobbs Act conviction where the robbery victim ―was an
individual whose only connection with interstate commerce
was his employment by a business engaged in interstate
commerce‖).
Even if these decisions are correct—a question not
before us today—they are unhelpful to the Walkers. The
central rationale of decisions such as Wang is that courts
should not ―apply the aggregation principle in conjunction
with long chains of causal inference that would have been
necessary to arrive at a substantial effect on interstate
commerce.‖ Wang, 222 F.3d at 239; see also Lopez, 514 U.S.
at 567 (―To uphold the Government‘s contentions here, we
would have to pile inference upon inference in a manner that
would bid fair to convert congressional authority under the
Commerce Clause to a general police power of the sort
retained by the States.‖). In other words, these decisions held
that the mere facts that (1) an individual was robbed of
personal property, (2) the individual happens to work for a
company engaged in interstate commerce, and (3) there was
some incidental effect on that person‘s job performance are
insufficient, standing alone, to establish Hobbs Act
jurisdiction, because the connection between the robbery and
interstate commerce is too attenuated.
The connection between the robbery in this case and
interstate commerce is much more direct. At the time of the
robbery, Wright was selling illegal drugs. As we recognized
38
in United States v. Orozco, ―[a] large interstate market exists
for illegal drugs. Congress has the power to regulate that
market just as it has the power to regulate food and drugs in
general.‖ 98 F.3d 105, 107 (3d Cir. 1996). In the wake of the
Supreme Court‘s decision in Raich, which held that
Congress‘ authority under the Commerce Clause includes
―the power to prohibit the local cultivation and use of
marijuana,‖ 545 U.S. at 5, an argument can be made that any
robbery of illegal drugs—even drugs grown and sold entirely
within a single state—interferes with the national market for
illegal drugs and therefore has a sufficient connection to
interstate commerce to create jurisdiction under the Hobbs
Act. See Needham, 604 F.3d at 688 (Cabranes, J., dissenting)
(arguing that, in light of Raich, the ―term ‗commerce‘ in the
Hobbs Act—whose ‗reach‘ is ‗coextensive‘ with the
Commerce Clause—includes purely ‗homegrown‘ marijuana‖
(citation omitted)). On this view, merely by attempting to rob
an individual drug dealer, the Walkers were directly seeking
to ―obstruct[] . . . the movement of [a] . . . commodity in
commerce.‖ 18 U.S.C. § 1951(a).
In this case, there is no need to embrace such a broad
proposition, because there is also evidence that the cocaine
Wright possessed originated outside of Pennsylvania. As
several of our sister circuits have concluded, the government
may satisfy the interstate commerce element of the Hobbs Act
by proving that a robbery targeted a drug dealer whose wares
originated out of state. As Judge Posner explained for the
Seventh Circuit in United States v. Thomas, a robbery which
interferes with the sale of drugs ―obstruct[s] commerce in a
pretty literal sense.‖ 159 F.3d 296, 297 (7th Cir. 1998). The
cocaine in Thomas ―originated in South America, and would
thus have traveled in commerce.‖ Id. By robbing the
39
prospective buyer of $675 that would have been used to
purchase cocaine, the defendant in Thomas ―thwarted what
would have been a sale in commerce within the meaning of
the Hobbs Act.‖ Id. at 297–98. The fact that:
the amount of cocaine in contemplation [in
Thomas] was small is irrelevant. . . . [T]he
relevant issue is the effect on commerce of the
entire class of transactions to which the
transaction or transactions at issue in the
particular case belong . . . . Any other rule
would leave the federal government helpless to
deal with criminal acts that have an individually
trivial but cumulatively significant effect on the
movement of goods and services across state
and international boundaries.
Id. at 298; see also Raich, 545 U.S. at 17 (―When Congress
decides that the total incidence of a practice poses a threat to
a national market, it may regulate the entire class.‖ (internal
quotation marks and citation omitted)).
Employing similar reasoning, several other courts of
appeals have found that stealing drugs that were produced out
of state from a drug trafficker satisfies the interstate
commerce element of the Hobbs Act. See United States v.
McCraney, 612 F.3d 1057, 1065 (8th Cir. 2010) (―The
evidence here showed that the cocaine stolen from Jones
necessarily originated in South America, and that Jones
intended to sell it in Iowa. The taking of that cocaine by
Williams thus disrupted the movement of a commodity in
interstate commerce.‖); United States v. DeCologero, 530
F.3d 36, 68 (1st Cir. 2008) (observing that ―[t]he robbing of a
drug dealer typically has the required nexus with interstate
40
commerce‖ and finding evidence sufficient where robbery of
drug dealer netted $18,000 and government expert testified
that cocaine originates in South America); Parkes, 497 F.3d
at 231 (holding that evidence was sufficient to support a
Hobbs Act conviction for attempted robbery of a large bag of
marijuana, fifty-eight smaller ―nickel bags‖ of marijuana, and
$4,000 cash from ―a local, part-time marijuana dealer‖ in
New York, where testimony showed that marijuana ―is almost
exclusively trucked into the United States, predominantly
through Mexico,‖ and that ―[v]ery little marijuana is grown in
New York‖ (internal quotation marks and citation omitted);
United States v. Ostrander, 411 F.3d 684, 692 (6th Cir. 2005)
(―The prosecution offered evidence that the cocaine and
marijuana Hansle Andrews sold originated in Latin America,
and thus had to get to Michigan through interstate commerce.
. . . In this case, the robbery and murder [of Andrews]
obviously reduced the amount of drugs Andrews could buy
and sell in interstate commerce.‖); United States v. Williams,
342 F.3d 350, 355 (4th Cir. 2003) (―Drug dealing . . . is an
inherently economic enterprise that affects interstate
commerce. For this reason, the robbery of a drug dealer has
been found to be the kind of act which satisfies the ‗affecting
commerce‘ element of the Hobbs Act, inasmuch as such a
robbery depletes the business assets of the drug dealer.‖
(citation omitted)).
These decisions by our sister circuits reinforce our
view that the robbery of a drug dealer whose product
originates outside Pennsylvania has a direct nexus to
interstate commerce. Accordingly, we reject the Walkers‘
invitation to treat this drug dealer robbery case like the kinds
41
of home invasion robberies at issue in cases such as Wang.16
Fourth, we reject the Walkers‘ argument that the
Hobbs Act does not apply to their conduct because they
robbed a first-time drug dealer. ―Congress‘s power to
criminalize . . . conduct pursuant to the Commerce Clause
turns on the economic nature of the class of conduct defined
in the statute rather than the economic facts . . . of a single
case.‖ United States v. Morales-de Jesús, 372 F.3d 6, 18 (1st
Cir. 2004) (emphasis added); see also Raich, 545 U.S. at 17
(observing that Congress is not required ―to legislate with
scientific exactitude‖). The Walkers attempted to rob a drug
trafficker. As explained above, such robberies, in the
aggregate, have a substantial effect on the interstate market
for illegal narcotics. The fact that the Walkers happened to
rob a neophyte drug dealer is irrelevant to whether their
conduct fits within the ―class of activities‖ prohibited by the
16
Indeed, Wang itself recognized that the government can
demonstrate a nexus between the robbery of personal
property and interstate commerce by showing ―that the
defendant knew of or was motivated by the individual
victim‘s connection to interstate commerce.‖ 222 F.3d at
240; see also United States v. Diaz, 248 F.3d 1065, 1088–89
(11th Cir. 2001) (―What sets this case apart is the fact that the
role of the Martins with regard to their business, which was
directly engaged in interstate commerce, was not
coincidental. Rather, the Court is convinced by the evidence
presented at trial that appellants targeted the Martins because
of their interest in Rosa Medical Center.‖). In this case, the
Walkers were motivated by Wright‘s connection to interstate
commerce—that is, they sought to rob him because he was a
drug dealer.
42
Hobbs Act.17 Moreover, as noted above, the effect of the
defendants‘ conduct upon interstate commerce is only
required to be ―slight, subtle or even potential.‖ Haywood,
363 F.3d at 210 (internal quotation marks omitted). There is
no evidence in the record suggesting that the Walkers targeted
Wright because it was his first day on the job. Rather, the
Walkers intended to rob a drug dealer, and it appears to have
been pure happenstance that the target they selected was a
first-time participant in drug trafficking. Thus, the Walkers‘
conduct had the ―potential‖ to interfere with the sales of more
established drug dealers.
Finally, we reject the Walkers‘ argument that the
evidence supporting their convictions was insufficient
because the government did not use the so-called ―depletion
of assets‖ theory. We have certainly held that this theory—
under which ―proof that a Hobbs Act violation depletes the
assets of a business engaged in interstate commerce
conclusively establishes the effect on commerce
requirement,‖ Urban, 404 F.3d at 762—may be used in
Hobbs Act cases in the wake of Lopez and its progeny. See
id. at 766 & n.3 (affirming continued viability of depletion of
assets theory). However, we decline to hold that the
depletion of assets theory is the exclusive means by which the
Hobbs Act‘s interstate commerce element may be satisfied.
Such a holding would be contrary to the ―broad language‖ of
the Hobbs Act, Stirone, 361 U.S. at 215, which does ―not lend
17
Even if we consider the relevant class of activities in this
case to be robberies of new drug dealers, such robberies are
still ―economic‖ activities under Lopez, and are likely, in the
aggregate, to have a substantial effect on the market for
illegal drugs.
43
[itself] to restrictive interpretation,‖ United States v. Culbert,
435 U.S. 371, 373 (1978). See also 18 U.S.C. § 1951(a)
(making it a federal crime to ―in any way or degree . . .
affect[] commerce . . . by robbery or extortion‖). Thus, while
the government can and often will rely upon the depletion of
assets theory, it is only required to present evidence proving
that the ―defendants‘ conduct produces any interference with
or effect upon interstate commerce, whether slight, subtle or
even potential.‖ Haywood, 363 F.3d at 209-10. As explained
above, the government presented sufficient evidence to
satisfy that standard in this case.
In summary, we hold that by presenting evidence that
(1) the Walkers attempted to rob a cocaine dealer of a de
minimis amount of drugs and cash, and (2) the drug dealer‘s
cocaine originated outside of Pennsylvania, the government
presented sufficient evidence from which a rational juror
could conclude that the Walkers‘ conduct satisfied the
interstate commerce element of the Hobbs Act.
Of course, to hold that the Hobbs Act sweeps so
broadly is not to encourage its use in every case to which it
might apply. Indeed, there are cases, such as this one, in
which its use to prosecute what could be considered a fairly
garden-variety robbery gives us some pause. See United
States v. Rutherford, 236 F. App‘x 835, 844–45 (3d Cir.
2007) (non-precedential) (Ambro, J., concurring, joined by
McKee, J.). Our concern is amplified by the fact that the
Hobbs Act can serve, as it did in this case, as a predicate
offense for a violation of 18 U.S.C. § 924(c), the first
violation of which carries a mandatory five-year consecutive
prison term, and the second violation of which carries an
extremely harsh mandatory twenty-five year consecutive
prison term. In this era of globalization where the apple at
44
one‘s local supermarket may come from Chile or New
Zealand, it is increasingly difficult for robberies not to fall
within the scope of the Hobbs Act, whose reach is co-
extensive with the broad scope of Congress‘s commerce
power, and it is perhaps similarly uncommon for modern
robberies not to involve firearms. There is no doubt that
robbery is a crime worth deterring through federal and state
prosecution of those who engage in such acts. We trust and
expect that federal prosecutors will exercise their broad
prosecutorial discretion (with which we are loath to interfere,
see United States v. Abuhouran, 161 F.3d 206, 216 (3d Cir.
1998)) to make the most effective use of federal resources, to
avoid supplanting the state criminal systems that quite ably
address classic state-law crimes, and to seek just and
appropriate criminal sentences in the course of their
representation of the United States.
VI. Brady Motion
Defendants next argue that the prosecution withheld
exculpatory evidence material to their defense in violation of
Brady v. Maryland, 373 U.S. 83 (1963). Specifically, they
argue that the failure of the prosecution to disclose
information regarding a March 8, 2007, incident involving
Skylar Rhoades until after the trial prejudiced their defense
and requires retrial. On that day, Rhoades was asked to make
a controlled buy of at least one ounce of crack cocaine.
Before the operation began, Rhoades was found in the
possession of a coat in the trunk of his car, and in the pocket
of that coat was a small amount of suspected crack cocaine.
The sample was sent to a lab, where it was determined that
the total weight of the ―off-white chunky material‖ found in
45
the coat was 0.18 grams (about 1/150th of an ounce18), and it
contained cocaine base. The government did not disclose this
to defendants until September 2008, after the conclusion of
defendants‘ jury trial.
In Brady and its progeny, the Supreme Court has held
that where the prosecution suppresses evidence favorable to
the defendant that is material either to guilt or punishment,
due process is violated. 373 U.S. at 87. This includes both
directly exculpatory evidence and impeachment evidence.
See United States v. Bagley, 473 U.S. 667, 676 (1985); Giglio
v. United States, 405 U.S. 150, 154 (1972). ―[T]o establish a
Brady violation requiring relief, a defendant must show that
(1) the government withheld evidence, either willfully or
inadvertently; (2) the evidence was favorable, either because
it was exculpatory or of impeachment value; and (3) the
withheld evidence was material.‖ Lambert v. Blackwell, 387
F.3d 210, 252 (3d Cir. 2004) (citing Banks v. Dretke, 540
U.S. 668 (2004)). Here, the government concedes the first
two elements, but argues that the third element, materiality, is
not satisfied.
―Information is material ‗only if there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different.‘‖ Lambert v. Beard, 633 F.3d 126, 133 (3d Cir.
2011) (quoting Bagley, 473 U.S. at 682). However, this
―does not require demonstration by a preponderance that
disclosure of the suppressed evidence would have resulted
18
By way of comparison, 0.18 grams is only about 1/20 of
the weight of an ―eightball‖ (a quantity referred to numerous
times during the trial), which is 3.5 grams.
46
ultimately in the defendant‘s acquittal . . . .‖ Kyles v. Whitley,
514 U.S. 419, 434 (1995). The ―touchstone of materiality is a
‗reasonable probability‘ of a different result.‖ Id. (quoting
Bagley, 473 U.S. at 682). ―The question is not whether the
defendant would more likely than not have received a
different verdict with the evidence, but whether in its absence
he received a fair trial, understood as a trial resulting in a
verdict worthy of confidence. A ‗reasonable probability‘ of a
different result is accordingly shown when the government‘s
evidentiary suppression ‗undermines confidence in the
outcome of the trial.‘‖ Id. (quoting Bagley, 473 U.S. at 678).
Here, defendants argue three theories of impeachment
in support of the materiality of the withheld material: (1)
Rhoades was preparing to frame someone through an
undercover buy by producing the 0.18 gram rock containing
cocaine base to the authorities after the buy and claiming he
purchased it; (2) a decision was made not to prosecute
Rhoades for possession of the 0.18 gram rock containing
cocaine base as additional consideration in exchange for his
cooperation; and (3) Rhoades was dealing and/or using drugs
while acting as a government informant, contrary to his trial
testimony. According to defendants, these theories
demonstrate a ―reasonable probability‖ sufficient to
undermine confidence in the verdict because Rhoades ―was
the only witness producing any direct evidence against
[defendants] on Count III of the Indictment charging
possession of a firearm to further the distribution of crack
cocaine.‖19 The District Court, in a post-trial memorandum,
19
Contrary to defendants‘ assertions, Rhoades was not the
only witness to testify to defendants‘ possession of a firearm
in furtherance of a drug offense. As discussed above, Jason
47
denied defendants‘ joint motion for a new trial based on the
aforementioned theories of a Brady violation. Reviewing the
District Court‘s conclusions of law de novo and its findings of
fact for clear error, Mitchell, 365 F.3d at 254, we address each
theory in turn and ultimately reject the Brady claim.
A. Framing others
Defendants‘ contention that Rhoades was preparing to
frame someone is casually mentioned in their appellate briefs.
We note first that no factual support or legal argument is
offered to substantiate the claims beyond the level of fanciful
speculation. Such an attenuated and unsupported assertion
does not cast doubt on the outcome of the trial and thereby
constitute a Brady violation. See United States v. Starusko,
729 F.2d 256, 262 (3d Cir. 1984) (―[Brady non-disclosure]
must adversely affect the court‘s ability to reach a just
conclusion . . . .‖).
Second, even were this court to accept defendants‘
conjecture, it would not rise to the level of a ―reasonable
probability‖ sufficient to undermine confidence in the verdict.
The possession of what can only be considered a minimal
amount of crack cocaine (about 1/150th of an ounce), when
Rhoades was asked to make a controlled buy of an amount
more than one hundred times greater than that (one ounce or
more), cannot reasonably be tied to an elaborate scheme to
McNeil testified that the defendants possessed a firearm in
furtherance of their drug distribution. Moreover, in Barron‘s
reply brief, he changes his theory and instead argues that
Rhoades was not the ―only witness,‖ but instead ―was a
critical witness.‖
48
frame someone else. Although not impossible, it is certainly
not reasonably probable, and thus, cannot be the basis for
Brady relief.
B. Non-prosecution
Defendants‘ second contention is that the March 2007
incident was material because it was ―part of the
consideration provided in exchange for [Rhoades‘s]
cooperation‖ which resulted in non-prosecution ―for yet an
additional crack cocaine violation.‖ This in turn would help
to impeach Rhoades, defendants argue, because he would
have a motive to lie to please the prosecution.
While we have recognized that ―undisclosed Brady
material that would have provided a different avenue of
impeachment is material, even where the witness is otherwise
impeached,‖ Lambert v. Beard, 633 F.3d at 134 (emphasis
added), ―‗impeachment evidence, if cumulative of similar
impeachment evidence used at trial . . . is superfluous and
therefore has little, if any, probative value,‘‖ id. at 133
(emphasis in original) (quoting Conley v. United States, 415
F.3d 183, 189 (1st Cir. 2005)).
Here, Rhoades was already impeached by defendants
with respect to his self-interested motivation in agreeing to
testify against defendants. As defense counsel noted at trial,
in exchange for Rhoades‘s cooperation, the government
dismissed two charges pending against him—possession with
intent to distribute cocaine and use of a firearm in furtherance
of drug trafficking. The government also gave him a very
substantial reduction in his term of imprisonment (from
approximately 9–10 years to 63 months) on an additional
charge of being a felon in possession of a firearm. The value
49
of additional impeachment by reference to possession of 0.18
grams of crack cocaine in March 2007 is of ―little, if any,
probative value‖ because it is impeachment by the same
avenue already taken by the defendants, namely Rhoades‘s
motivation for testifying against the Walkers as part of a
bargained-for reduction in criminal penalties. Defendants had
already thoroughly attacked Rhoades‘s credibility on account
of prosecutorial inducements used to secure Rhoades‘s
testimony against defendants, and thus this avenue of
impeachment does not provide a ―reasonable probability‖ of a
different outcome. See Tankleff v. Senkowski, 135 F.3d 235,
251 (2d Cir. 1998) (―When a witness‘s credibility has already
been substantially called into question in the same respects by
other evidence, additional impeachment evidence will
generally be immaterial and will not provide the basis for a
Brady claim.‖ (emphasis added)).
C. Continued drug use and sale
Defendants‘ final contention concerns whether
Rhoades continued to use and sell drugs. They point to the
following exchanges during the cross-examination of
Rhoades:
Q: Let me turn your attention to robbery
charges. Am I correct in saying that you
and John McNeil had participated in
robbery charges together?
A: In robbery charges together? I ain‘t
never been in no robbery charges with
him.
Q: Never?
50
A: Never.
Q: And if anybody testified to that, they‘re
being untruthful and you are being
truthful in your denial?
A: Yes, I am.
....
Q: While you were an informant, did you
deal drugs or sell drugs with Mr.
McNeil?
A: No.
Q: Did you deal drugs or sell drugs with
anybody during that period of time?
A: No.
Q: Okay. So you stopped dealing drugs
when? When you were arrested on those
charges in 2006?
A: Yes.
....
Q: So you became legitimate after you were
arrested?
A: Yes.
Q: Okay. Now, you‘ve testified that you
brought a lot of cocaine back from New
51
York, correct, Harlem, Queens, South
Queens? Is that correct?
A: Yes.
Q: When did you bring all this cocaine and
make it into crack and sell it in
Harrisburg?
A: Before the time I got caught and indicted
for this.
Q: Before you got into trouble?
A: From 15 until then.
Q: And now you‘re a different person?
A: Yes.
A fair reading of Rhoades‘s testimony is that he stated (i) he
did not engage in any robberies with John McNeil, (ii) anyone
who said he engaged in such robberies was lying, (iii) he
never sold drugs with John McNeil, and (iv) he did not sell
drugs after 2006. Defendants argue that Rhoades ―presented
himself to the Court and jury as not having anything to do
with drugs after his arrest in 2006, and as someone who was
working as a government informant who had been totally
rehabilitated and specifically testified that all those that said
differently [by identifying him as a participant in robberies]
were untruthful and not worthy of belief.‖ Therefore,
defendants argue, had the jury known of Rhoades‘s March
2007 possession of 0.18 grams of crack cocaine, they would
not have believed ―that he was telling the truth about his
rehabilitation,‖ id., and thus, would not believe any of his
52
testimony regarding Counts I, II, and III.
The contradiction between Rhoades‘s testimony and
that of other witnesses regarding Rhoades‘s participation in
robberies was already highlighted to the jury through cross-
examination and argument, and the March 2007 incident does
not reflect on that contradiction. Moreover, although
Rhoades denied selling drugs after 2006, nowhere in his
testimony does he expressly deny possessing or using drugs
after that date. The inference starting from a single instance
of possession of 0.18 grams of crack cocaine and
extrapolating to selling or dealing drugs is not so strong as to
provide a reasonable probability that the jury would find
Rhoades wholly unbelievable, as defendants argue. Thus,
disclosure of Rhoades‘s March 2007 possession of 0.18
grams of crack cocaine was not likely to ―undermine[]
confidence in the outcome of the trial.‖ Bagley, 473 U.S. at
678.
We clarify that, although the March 2007 incident is
potentially a new avenue of impeachment, it is not material
for Brady purposes. As noted above, we have recognized that
―undisclosed Brady material that would have provided a
different avenue of impeachment is material, even where the
witness is otherwise impeached.‖ Lambert v. Beard, 633 F.3d
at 134. In making this observation, we cited to two of our
prior cases, Slutzker v. Johnson, 393 F.3d 373, 387 (3d Cir.
2004), and United States v. Perdomo, 929 F.2d 967, 969, 972
(3d Cir. 1991), in which different avenues of impeachment
were indeed material. However, this is not to say that every
unexplored avenue of impeachment is ipso facto material;
because the ―touchstone of materiality is a ‗reasonable
probability‘ of a different result,‖ Kyles, 514 U.S. at 434
(quoting Bagley, 473 U.S. at 682), it is only those new
53
avenues of impeachment that sufficiently undermine
confidence in the verdict that will make out a successful
Brady claim. Indeed, our primary concern in Lambert v.
Beard was that the Supreme Court of Pennsylvania had
concluded that a witness ―was so thoroughly impeached that,
ipso facto, additional evidence could not have made a
difference,‖ and we held that it was ―patently unreasonable to
presume—without explanation—that whenever a witness is
impeached in one manner, any other impeachment becomes
immaterial.‖ 633 F.3d at 133–34. Our statement in Lambert
v. Beard is a recognition that there are some instances where
specific impeachment evidence is so important (for issues
such as the identity of the culprit) that it is material for Brady
purposes even when a witness has already been effectively
impeached on other issues. See id. at 135–36 (witness‘s prior
reference to another “co-defendant” other than the accused
was material even though witness had been thoroughly
impeached on other grounds because witness had testified at
trial that only the accused and one other person were present);
Slutzker, 393 F.3d at 387–88 (impeachment evidence was
material where the witness had previously identified another
individual as the culprit even though the witness had been
impeached by prior statements in which she failed to identify
defendant as the culprit); Perdomo, 929 F.2d at 972 (noting
that whether ―the jury has had an opportunity to consider
other impeachment evidence is not the correct standard for
determining materiality,‖ but instead was whether the
evidence, ―if disclosed and used effectively . . . may make the
difference between conviction and acquittal‖ (internal
quotation marks omitted) (quoting Bagley, 473 U.S. at 676)).
We further observe that this was not a case in which
there was a lone witness providing uncorroborated testimony.
54
Cf. Lambert v. Beard, 633 F.3d at 134 n.3 (―‗[C]onfidence in
the outcome is particularly doubtful when the withheld
evidence impeaches a witness whose testimony is
uncorroborated and essential to the conviction.‘‖ (quoting
Norton v. Spencer, 351 F.3d 1, 9 (1st Cir. 2003))). Here,
Rhoades‘s testimony was not the only testimony providing
direct support to the prosecution on Counts I, II, and III—
Jason McNeil independently testified at length to the
defendants‘ conspiracy to sell drugs, actual sale of drugs, and
possession of a firearm in furtherance of those drug sales,
corroborating Rhoades‘s testimony. While it is regrettable
that the government did not disclose the March 8, 2007,
incident prior to trial, the government‘s mistake does not rise
to the level of a Brady violation.
VII. Conclusion
For the foregoing reasons, the District Court‘s
judgments of conviction and sentence will be affirmed in all
respects.
55