United States v. Anthony Hadaway , 466 F. App'x 154 ( 2012 )


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  •                                                                 NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ___________
    No. 11-1902
    ___________
    UNITED STATES OF AMERICA
    v.
    ANTHONY HADAWAY,
    a/k/a VINCENT LAMONT JONES
    a/k/a LAMONT JONES,
    Appellant
    _______________________
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    D.C. Criminal No. 09-cr-00161-001
    (Honorable J. Curtis Joyner)
    ______________
    Submitted Pursuant to Third Circuit LAR 34.1(a)
    March 5, 2012
    Before: SCIRICA, AMBRO and VAN ANTWERPEN, Circuit Judges.
    (Filed: March 16, 2012)
    _________________
    OPINION OF THE COURT
    _________________
    SCIRICA, Circuit Judge.
    Anthony Hadaway was tried and convicted in federal court for interference of
    interstate commerce by robbery (
    18 U.S.C. § 1951
    (a)). He was sentenced to 293 months’
    imprisonment. He raises two arguments on appeal. First, he contends the court abused its
    discretion in denying his pretrial motion to sever his charges. Second, he argues the court
    erred in allowing the government to introduce fingerprint reports assembled by the
    Philadelphia Police Department, because these reports contained prejudicial hearsay and
    their entry into evidence violated his rights under Confrontation Clause. We will affirm.
    I.
    In August 2008, Hadaway committed two robberies at commercial establishments
    in Southwest Philadelphia. First, on August 1, he entered Fashion Unlimited, a clothing
    store located at 6127 Woodland Avenue, and pretended to shop for goods. He left without
    buying anything, and returned approximately fifteen minutes later. Hadaway asked the
    shopkeeper to fetch him two pieces of merchandise from a wall display. When she did so,
    Hadaway beat and seriously wounded her, leaving her unconscious. He stole a gold
    necklace from the shopkeeper’s neck, moved the cash register to the back of the store,
    and stole $600 to $800 from the register. He then fled.
    Next, on August 6, 2008, Hadaway entered E-Z Cleaners, a drycleaners located at
    701 S. 52nd Street. He dropped off two items, was handed a receipt, and departed.
    Approximately thirty minutes later, Hadaway returned to E-Z Cleaners and told M.N., the
    sole owner and employee, that he wanted to retrieve his clothing because the fee was too
    high. He handed over the receipt, which M.N. put in the trashcan. Hadaway took out a
    handgun, pointed it at M.N., and climbed over the counter. He stole $100-130 from the
    register, and took $30, a debit and credit card, and two cell phones from M.N. Hadaway
    forced M.N. to the back of the store at knife-point, tied her up, and fled.
    2
    On the day each robbery was committed, Philadelphia police officers investigated
    the scene promptly. At Fashion Unlimited, they found a latent fingerprint on the cash
    register. At E-Z Cleaners, they found a fingerprint on Hadaway’s receipt in the trashcan.
    Both fingerprints were analyzed, and each was found to match a set of known prints
    belonging to the defendant. Hadaway was arrested on August 13, 2008. At the police
    station, he waived his Miranda rights and confessed to both robberies. With respect to the
    robbery at Fashion Unlimited, Hadaway stated, “I went in there and robbed it.” With
    respect to E-Z Cleaners, Hadaway confessed, “I went in there and asked for the money. . .
    . I pointed a knife at her [the store employee]. . . . It was a steak knife.” He also admitted
    to “jump[ing] over” the counter, stealing money from the store, and taking two cell
    phones from the employee.
    On March 12, 2009, a grand jury in the Eastern District of Pennsylvania returned a
    three-count indictment against Hadaway, charging him with two counts of interference of
    interstate commerce by robbery (
    18 U.S.C. § 1951
    (a)), and one count of using and
    carrying a firearm during a crime of violence (
    18 U.S.C. § 924
    (c)). Before trial, Hadaway
    filed a motion to sever under Fed. R. Crim. P. 14. He argued that consolidating the
    robbery counts would cause him unfair prejudice, because it would lead the jury to
    believe he was more likely to be culpable given the presence of two similar crimes. The
    court denied Hadaway’s motion.
    Hadaway proceeded to trial. The government’s evidence against him consisted of
    testimony from employees at each store; testimony from the Philadelphia police officers
    who obtained latent fingerprints from the crime scenes; testimony from Clifford Parson, a
    3
    fingerprint technician for the Philadelphia Police Department; and testimony from the
    detective who heard Hadaway’s confession. The jury found Hadaway guilty of
    interference of interstate commerce by robbery, but not guilty of using a firearm during a
    crime of violence. As noted, the District Court sentenced him to 293 months’
    imprisonment, as well as ordered three years’ supervised release.
    II. 1
    Hadaway contends the District Court erred in denying his motion to sever. We
    review for abuse of discretion. United States v. Hart, 
    273 F.3d 363
    , 369 (3d Cir. 2001).
    Fed. R. Crim. P. 8(a) provides for the joinder of two or more offenses in an
    indictment or information when they 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.” Under Fed. R. Crim. P. 14(a), meanwhile, a “court may order separate
    trials of counts, sever the defendants’ trials, or provide any other relief that justice
    requires,” where joinder “appears to prejudice a defendant.” Hadaway concedes joinder
    of the three offenses was proper in the indictment, but contends the court should have
    exercised its discretion under Rule 14(a) to sever the offenses at trial.
    Hadaway’s claim is unavailing. A district court enjoys considerable latitude in
    deciding whether to sever offenses under Rule 14, with the touchstone being whether a
    “substantial potential for prejudice” will arise if the trials are consolidated. United States
    v. Joshua, 
    976 F.2d 844
    , 848 (3d Cir. 1992). “Mere allegations of prejudice are not
    1
    The District Court had jurisdiction under 
    18 U.S.C. § 3231
    . We have jurisdiction under
    
    28 U.S.C. § 1291
    .
    4
    enough; and it is not sufficient simply to establish that severance would improve the
    defendant’s chance of acquittal.” United States v. Reicherter, 
    647 F.2d 397
    , 400 (3d Cir.
    1981). In Hadaway’s case, the court reasonably concluded that a “substantial potential
    for prejudice” would not arise from a single trial. The jury could “reasonably be expected
    to compartmentalize the evidence” against Hadaway for each offense, given that he was
    being tried for two relatively simple robberies, one of which allegedly involved a gun. 
    Id. at 400
    ; United States v. Weber, 
    437 F.2d 327
    , 332 (3d Cir. 1970). We have upheld a
    jury’s ability to consider multiple charges in cases far more complex than that here. E.g.
    United States v. Thomas, 
    610 F.2d 1166
     (3d Cir. 1979) (holding severance was
    unnecessary in a case with 31 bank fraud charges).
    The District Court properly instructed the jury to consider each offense
    separately, stating “[t]he number of offenses charged is not evidence of guilt and this
    should not influence your decision in any way.” That the jury convicted Hadaway on
    Counts One and Two (the two robbery counts) but not on Count Three (using a gun
    during a crime of violence) confirms it compartmentalized the evidence against him, and
    was not substantially prejudiced by the joinder of the offenses at trial.
    III.
    Next, Hadaway contends the District Court erred in admitting evidence of two
    “Investigation Reports” produced by the Philadelphia Police Department, each
    concluding that a latent fingerprint found at one of the crime scenes matched the known
    prints of Hadaway. We review for abuse of discretion. United States v. Serafini, 
    233 F.3d 758
    , 768 (3d Cir. 2000).
    5
    The Investigation Reports came into evidence under the business records
    exception to the hearsay rule, Fed. R. Evid. 803(6), during the government’s redirect
    examination of its expert, Clifford Parson. On direct examination, Parson explained that,
    in his professional opinion, the latent fingerprints found at Fashion Unlimited and E-Z
    Cleaners matched those of Anthony Hadaway. 2 On cross-examination, the defense sought
    to impeach Parson’s credibility by pressing him to concede that, in conducting its
    analyses, the Philadelphia Police Department diverged from some of the professionally
    recommended standards for conducting “ACE-V” fingerprint identification. The defense
    also attacked Parson’s credibility by suggesting his analysis of one of the sets of prints
    suffered from “confirmation bias,” given that Parson was not the “initial evaluator” for
    that set. On redirect examination, the government responded to the defense’s attack on
    Parson by introducing the two Investigation Reports compiled by the Philadelphia Police
    Department, in which three technicians – an initial analyst and two verifiers – made
    positive identifications of each set of prints. The government’s objective was to show that
    the Department had complied with the widely followed standards for conducting ACE-V,
    and that Parson’s role in the process provided him a sufficiently informed expert opinion.
    The court did not abuse its discretion in admitting the Investigation Reports into
    evidence under Fed. R. Evid. 803(6). Hadaway contends that while the reports might
    have qualified as business records, they contained a second layer of problematic
    testimony – namely, the statements of the two fingerprint technicians (besides Parson)
    2
    The only exhibits the government used during Parson’s direct examination were images
    of the latent prints found at each crime scene, and images of Hadaway’s fingerprints.
    Parson used the exhibits to demonstrate how he was able to make positive matches.
    6
    who made positive identifications in each report but did not testify at trial. According to
    Hadaway, this second layer of testimony was unsanctioned by Fed. R. Evid. 805
    (prescribing that “[h]earsay included within hearsay” is only admissible “if each part of
    the combined statements conforms with an exception to the hearsay rule”), as well as by
    the Confrontation Clause, see Melendez-Diaz v. Mass., 
    557 U.S. 305
     (2009) (holding that
    a forensic analyst’s statements in a laboratory report were “testimonial,” and were
    inadmissible unless the analyst appeared at trial). On the Confrontation Clause point,
    Hadaway cites Bullcoming v. New Mexico, 
    131 S. Ct. 2705
     (2011), where the Court
    recently held it did not satisfy Melendez-Diaz for a scientist to testify about a report
    compiled by his colleague, even if the two worked at the same lab. Nonetheless,
    Hadaway’s claims are unavailing. On redirect, the government responded to the defense’s
    assertions that the Philadelphia Police Department deviated from the protocols, and about
    whether Parson’s judgment suffered from confirmation bias, by introducing the
    Investigation Reports. The purpose of the reports was to respond to the defense’s attack –
    to show that the Department had performed ACE-V in a responsible and professional
    manner, and that Parson was an informed participant in that process with a well-founded
    expert judgment. Neither Fed. R. Evid. 805 nor the Confrontation Clause were triggered,
    because the reports were not being offered for the truth of the matter asserted therein nor
    as “testimony” against Hadaway.
    Furthermore, any error in admitting the reports was harmless. When a court errs in
    making an evidentiary ruling, we may affirm as long as there is a “high probability” it did
    not contribute to the verdict. United States v. Molina-Guevara, 
    96 F.3d 698
    , 703 (3d Cir.
    7
    1996). When that error is of constitutional proportions, we may affirm only if “it appears
    beyond a reasonable doubt that the error complained of did not contribute to the verdict
    obtained.” United States v. Barbosa, 
    271 F.3d 438
    , 459 (3d Cir. 2001) (internal quotation
    marks and citation omitted); see also United States v. Jimenez, 
    513 F.3d 62
    , 78 (3d Cir.
    2008 ) (applying harmless error analysis to a Confrontation Clause challenge). Here, both
    standards – as to the evidentiary error, and as the Confrontation Clause error– are
    satisfied. First, at the time of the reports’ introduction, all of the potentially problematic
    testimony included therein had already been challenged by Hadaway. During the
    defense’s cross-examination of Parson, Hadaway’s counsel asked whether, and how
    many, persons at the Department besides Parson had positively matched the latent prints
    to Hadaway’s prints. Parson answered that, for each latent, two additional technicians
    made a positive identification. The only new information that came out during the
    government’s redirect and its introduction of the reports was the name of the two
    technicians. Second, the remaining evidence against Hadaway – from the testimony of
    the store employees, to the expert testimony of Clifford Parson on direct, to Hadaway’s
    confession – was more than sufficient to convict. These factors show it is clear “beyond a
    reasonable doubt that the jury verdict would have been the same absent [any] error.”
    Barbosa, 
    271 F.3d at 460
    .
    IV.
    For the foregoing reasons, we affirm the judgment of conviction and sentence.
    8