United States v. Shaquim Fredericks , 684 F. App'x 149 ( 2017 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 15-1331, 15-1332, 15-1350, 15-1351
_____________
UNITED STATES OF AMERICA
v.
SHAQUIM FREDERICKS, Appellant in 15-1331
CHEFTON C. NEWTON, Appellant in 15-1332
WARKIM GABRIEL, Appellant in 15-1350
ALVIN THOMAS, Appellant in 15-1351
_____________
On Appeal from the
District Court of the Virgin Islands
(D.C. Nos. 3:14-cr-00033-001, 004, 002, 003)
District Judge: Hon. Curtis V. Gomez
_____________
Submitted under Third Circuit L.A.R. 34.1(a)
December 12, 2016
Before: CHAGARES, JORDAN, and HARDIMAN, Circuit Judges.
(Filed: April 7, 2017)
_____________
OPINION
_____________

This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
CHAGARES, Circuit Judge.
On July 23, 2014, a jury found defendants Shaquim Fredericks (“Fredericks”),
Clifton Newton (“Newton”), Warkim Gabriel (“Gabriel”), and Alvin Thomas
(“Thomas”) guilty of conspiracy to interfere with commerce by robbery, in violation of
18 U.S.C. § 1951(a) (Count One); interference with commerce by robbery, in violation of
18 U.S.C. §§ 1951(a) and 2 (Count Two); and conspiracy to possess a firearm in
furtherance of a crime of violence, in violation of 18 U.S.C. § 924(o) (Count Four). They
timely appealed their convictions on various bases. For the reasons that follow, we will
affirm in part and vacate and remand in part.
I.
Because we write exclusively for the parties, we set forth only those facts
necessary to our disposition.
The defendants were involved in a March 15, 2014 armed robbery of Imperial
Jewelers (“Imperial”), a jewelry store located in St. Thomas, United States Virgin
Islands. At approximately 8:15 a.m. on March 15, Fredericks, Gabriel, and Thomas (and
others) were observed gathering at Fireburn Hill in white t-shirts. At approximately 9:40
a.m., the Virgin Islands Police Department (“VIPD”) received a 911 call that seven
individuals wearing black clothing, black gloves, and black masks were running to
Imperial Jewelers. The individuals entered Imperial, and while some of them held
customers and employees at gunpoint, others smashed display cases and took jewelry.
The individuals were in the jewelry store for less than one minute.
2
The alarm at Imperial was activated during the robbery. Shortly thereafter, the
dispatcher called over the radio that there was an armed robbery in progress and a suspect
was fleeing toward Back Street. Another radio call reported that a suspect was heading
toward Vester Gade. A third call conveyed that several suspects were fleeing toward
Fireburn Hill. At approximately 10:00 a.m., several gunshots were heard coming from
the Fireburn Hill area.
Officer Derek Greaves responded to one dispatch and proceeded to Fireburn Hill.
On Fireburn Hill, he saw a young, black male, later identified to be Thomas, exiting the
bushes. Officer Greaves ordered Thomas to the ground, and Thomas complied. Officer
Dora Lyn Theda-Charles (“Officer Charles”) was also on the scene. She handcuffed
Thomas and took him to her vehicle. Before he was placed in the vehicle he was given
warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). Thomas told Officer
Charles that he couldn’t breathe. Officer Charles rolled down the windows but left
Thomas in the car for over an hour. Officer Charles then transported Thomas to the
police precinct for booking.
Detective Charles Gumbs also responded to one of the radio dispatches. As he
entered the “Savan gut” area, he observed “several black males, all dressed in black” who
fled as soon as they saw him. Gabriel Appendix (“Gabriel App.”) 272:7–9. He pursued
them and eventually ended up in the Catherineberg area. He entered the bushes and
found two individuals not named in this case crouching or laying in the bushes. They
were wearing dark clothes and were missing their shoes. They appeared to be very
sweaty and out of breath. The individuals were both arrested. Detective Gumbs and
3
another officer, Officer Lester Stout proceeded to search the bushes, and Detective
Gumbs came upon another individual, later identified to be Newton. Detective Gumbs
ordered Newton to raise his hands and, after Newton did so, Detective Gumbs called for
Officer Stout over the radio. Officer Stout responded, conducted a pat-down search, and
secured Newton. Detective Gumbs continued his search of the area and came upon a pair
of gloves, which Newton denied were his. Dark clothing was also found in close
proximity to where Newton was hiding. When he was found, Newton did not have shoes
on, but shoes were found nearby. At trial, Detective Gumbs testified that Newton was
wearing dark clothing when he was found. However, Newton was in fact wearing a
white t-shirt. After Newton and the two other individuals were secured, Detective
Gumbs returned to the area where he had apprehended the suspects and collected
evidence including socks, gloves, masks, shoes, other clothes, bags, jewelry, a firearm,
and display racks from the jewelry store.
Officer Joycelyn Lee-Bobb (“Officer Lee-Bobb”) also responded to the robbery.
She observed “at least five black males” running on Norre Gade. Gabriel App. 221:4.
She then pursued two individuals in the direction of Fireburn Hill. These individuals
were later identified as Gabriel and Fredericks. While in pursuit, Officer Lee-Bobb
realized that she did not have her radio, so she returned to her vehicle to report her
location.
Officers Daryl Donovan and Erecedo Lindquist found Gabriel and Fredericks in a
shanty in the Catherineberg area. They had responded to the report of the robbery and
4
were tracking suspects with a K-9 search dog. In addition to leading them to Gabriel and
Fredericks, the K-9 also located bags, handbags, shirts, pants, gloves, and sneakers.
All of the defendants were transported to the police station. The booking process
began at approximately 3:00 p.m. and concluded at approximately 4:00 p.m. During this
time, Thomas told Detective Sehkera Tyson that he wanted to make a statement about the
robbery but wanted to do so out of the presence of the other suspects. At 3:06 p.m.,
Detective Tyson advised him of his rights and provided him with a form detailing his
rights. He executed the form, indicating that he had read the statement, that it had been
read to him, and that he understood his rights. Thomas was then taken to an interview
room. At 4:26 p.m., Detectives Sophia Rashid and Nigel James again advised Thomas of
his Miranda rights. They also provided him with a form outlining his rights, which he
executed. He also executed a waiver forgoing his right to an attorney. At no point did
Thomas ask for a lawyer.
Thomas then provided a statement incriminating himself and his co-defendants.
The statement provided, in pertinent part:
The eight of us met . . . and we got dressed, we waited and one of the
people that I don’t know started running, then we followed that person
towards the store. Someone jumped over the counter. I pushed that person
over the counter, then I went in the walk way and started picking up the
chain . . . . Then I heard somebody say, let’s go[.] Then I picked up three
cartons of rings. Then we ran . . . [and] we ended up at Fireburn Hill, we
had plans to put the jewelry at my spot and somebody would come pick it
up. We were going up through the bush, some went left some went right
and I went straight to my spot. I heard a shot before I reached my spot. I
was at my spot for a couple seconds, I took off my pants, I walked out to
the road and an officer stopped me.
5
Thomas Supplemental Appendix (“Thomas Supp. App.”) 880. Thomas also drew a map
indicating where he and his co-defendants were found.1 Thomas was presented to a
Magistrate Judge on the morning of March 17, 2014.
At trial, the evidence introduced included the following. The sales manager
testified that all of the jewelry at Imperial was imported from outside the Virgin Islands.
He also testified that the jewelry recovered by the VIPD was the jewelry that was stolen
from Imperial on March 15, 2014. Video cameras at Imperial captured the robbery, and
the video was introduced and played for the jury. Eyewitness testimony, photographs,
and other evidence corroborated the events depicted in the video. There was also
testimony corroborating the gunshots. Thomas’s statement was admitted at trial with a
limiting instruction that it was only to be used against Thomas. See Gabriel App.
609:17–610:6. The statement was sanitized to replace the names of other individuals
with the word “someone” or “person.” See Gov. Br. Gabriel 7. The defendants objected
to the reading of the statement. See Gabriel App. 609:5–16.
After the lunch break on the second day of trial, the defendants were reentering the
courtroom in handcuffs, escorted by the U.S. Marshals service. The jury was in the
courtroom. At least one juror saw Newton with handcuffs on. Fredericks was entering
1
Thomas’s account differs from that of the Government. The accounts diverge most
notably with respect to what happened at the police station. According to Thomas, he
was told at least four times that if he talked to the police, he could go home. He stated
that he declined to make a statement. They told him that if he made a statement, he could
go home, go to school, have a future, and graduate. They also told him that his mother
was at the station crying. Thomas eventually said that he would make a statement and
was taken to the interview room where he proceeded to do so. He signed the rights form
and the waiver and did not ask for an attorney. He testified that the officers asked him to
draw the fastest route from Coconuts to Fireburn Hill and that he did so.
6
the courtroom behind Newton, and it is possible that a juror saw him in handcuffs. When
the District Court judge “saw that there was an effort to address cuffs,” he ordered the
jury to leave. Fredericks Appendix (“Fredericks App.”) 503:23–24. The period of time
during which the jury and the shackled defendants were in the courtroom together was
less than a minute. Newton, Fredericks, and Gabriel moved for a mistrial.
At the close of evidence, the District Court gave the following curative instruction:
Any and all security measures taken by the court security staff or the
United States [M]arshal[s] during this trial and during breaks are routine.
Security measures are not evidence of any kind against the accused. They
may not be considered by you as any evidence of the guilt of any
defendant.
Fredericks App. 661:6–11.
The Government rested on July 22, 2014, at which point the defendants moved to
dismiss all counts, pursuant to Federal Rule of Criminal Procedure 29. The court
dismissed Count Three (possession of a firearm in furtherance of a crime of violence, in
violation of 18 U.S.C. § 924(c)) and Count Five (possession of a firearm with an
obliterated serial number, in violation of 18 U.S.C. § 922(k)). On July 23, 2014, the jury
returned a verdict of guilty on Counts One, Two, and Four against each defendant.
The defendants were sentenced on January 29, 2015. Newton, Gabriel, and
Fredericks were each sentenced to 108 months of imprisonment on each of three counts
to run concurrently, a three-year term of supervised release, restitution of $678,294.44,
and a special assessment of $300. Thomas was sentenced to 85 months of imprisonment
7
on each of three counts to run concurrently, a three-year term of supervised release,
restitution of $678,294.44, and a special assessment of $300.
II.
The District Court exercised jurisdiction over this case pursuant to 48 U.S.C.
§ 1612(a) and 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.
III.
The defendants raise a variety of arguments attacking their convictions.
Fredericks presents two issues on appeal: (1) whether the Hobbs Act is unconstitutional
as applied to this case, and (2) whether he was denied his due process rights when the
jury saw him and Newton shackled in the courtroom. Newton raises two issues on
appeal: (1) whether there was sufficient evidence to support his convictions, and (2)
whether his due process rights were violated when the jury saw him in shackles. Gabriel
also raises two issues on appeal: (1) whether admission of Thomas’s statement violated
Gabriel’s confrontation rights, and (2) whether there was sufficient evidence to support
his convictions. Finally, Thomas contends that his confession should have been
suppressed.
A.
Both Thomas and Gabriel challenge the admission of Thomas’s statement at trial.
1.
Thomas contends that the District Court erred in denying his motion to suppress
his statement on several grounds: (1) that his arrest was unlawful because the police
lacked probable cause, (2) that his statement was involuntary, and (3) that there was an
8
improper delay in his presentment.2 The District Court denied the motion to suppress on
the ground that Thomas’s statement was not involuntary. The District Court also
concluded that period of time between Thomas’s arrest and his presentment was not
“something that [gave] the Court . . . concern” and that 48 hours was “fairly standard, and
the Court [didn’t] find anything infirm with that.” Thomas App. 213:5–7. However, the
District Court did not make findings of fact or determinations of law with respect to
probable cause for arrest. On appeal, Thomas renews his arguments with respect to
probable cause and presentment but does not contest the District Court’s determination as
to voluntariness.
We will first consider the District Court’s conclusion as to presentment. Thomas
was presented to a Magistrate Judge within 48 hours of his arrest. In his Amended
Motion to Suppress, Thomas argued that “pursuant to the Fourth and [sic] Amendment[]
to the United States Constitution, 18 U.S.C. § 3501, McNabb v. United States, 318 U.S.
332[] (1943), and Mallory v. United States, 354 U.S. 449 (1957)” his statement should be
suppressed because his right to prompt presentment was violated. Thomas App. 61. As
summarized by the Supreme Court,
[t]he so-called McNabb–Mallory rule, adopted by this Court “[i]n the
exercise of its supervisory authority over the administration of criminal
justice in the federal courts,” McNabb, 318 U.S. at 341, generally rendered
inadmissible confessions made during periods of detention that violated the
prompt presentment requirement of Rule 5(a) of the Federal Rules of
Criminal Procedure. See Mallory, 354 U.S. at 453. Rule 5(a) provides that
2
“We review the denial of a motion to suppress for clear error as to the underlying
factual determinations and exercise plenary review over the application of the law to
those facts.” United States v. Williams, 417 F.3d 373, 376 (3d Cir. 2005).
9
a person arrested for a federal offense shall be taken “without unnecessary
delay” before the nearest federal magistrate, or before a state or local
judicial officer authorized to set bail for federal offenses under 18 U.S.C. §
3041, for a first appearance, or presentment.
United States v. Alvarez-Sanchez, 511 U.S. 350, 354 (1994) (second alteration in
original). Section 3501 of Title 18 of the United States Code limits this rule by allowing
for the admission of statements that are made voluntarily and within six hours of arrest,
provided that a judge concludes that any delay in presentment was not unreasonable. But
§ 3501 does not prohibit admission of statements made outside the six-hour window. “If
the confession occurred before presentment and beyond six hours . . . the court must
decide whether delaying that long was unreasonable or unnecessary under the McNabb–
Mallory cases, and if it was, the confession is to be suppressed.” Corley v. United States,
556 U.S. 303, 322 (2009).
Thomas’s argument with respect to presentment is unavailing. The precedent on
which he relies applies to defendants in federal custody on federal charges. See Alvarez-
Sanchez, 511 U.S. at 359 (“In this case, respondent was under arrest on state narcotics
charges at the time he made his inculpatory statement to the Secret Service agents. The
terms of § 3501(c) thus did not come into play until respondent was arrested by the
agents on a federal charge—after he made the statement. Because respondent’s statement
was made voluntarily, as the District Court found, nothing in § 3501 authorized its
suppression.”). At the time he made his confession, Thomas was in territorial custody
and, thus, the six-hour requirement does not apply. Thomas attempts to save his
argument by invoking Anderson v. United States, 318 U.S. 350 (1943), which provides
10
for the suppression of statements in situations where there is improper collaboration
between federal and state officials. Thomas did not raise this argument in the District
Court and is therefore precluded from raising it for the first time on appeal. United States
v. Joseph, 730 F.3d 336, 337 (3d Cir. 2013) (“We hold that for parties to preserve an
argument for appeal, they must have raised the same argument in the District Court—
merely raising an issue that encompasses the appellate argument is not enough.”). In
addition, even if he had raised this argument, it is meritless because he has failed to
demonstrate “improper collaboration between federal and state or local officers.”
Alvarez-Sanchez, 511 U.S. at 359 (citing Anderson, 318 U.S. 350).
Thomas also argues that his statement should be suppressed because the VIPD did
not have probable cause to arrest him. The Fourth Amendment prohibits “unreasonable
searches and seizure.” U.S. Const. amend. IV. “[A] warrantless arrest by a law officer is
reasonable under the Fourth Amendment where there is probable cause to believe that a
criminal offense has been or is being committed.” Devenpeck v. Alford, 543 U.S. 146,
152 (2004). “[T]he indirect fruits of an illegal search or arrest should be suppressed
when they bear a sufficiently close relationship to the underlying illegality.” New York
v. Harris, 495 U.S. 14, 19 (1990). Not “all evidence is ‘fruit of the poisonous tree’
simply because it would not have come to light but for the illegal actions of the police.”
Wong Sun v. United States, 371 U.S. 471, 487–88 (1963). When a confession is
“sufficiently an act of free will to purge the primary taint of the unlawful [action],” it may
be admissible. Id. at 486. The “apt question in such a case is ‘whether, granting
establishment of the primary illegality, the evidence to which instant objection is made
11
has been come at by exploitation of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.’” Id. at 488 (quoting Maguire,
Evidence of Guilt, 221 (1959)); see also United States v. Butts, 704 F.2d 701, 703 (3d
Cir. 1983) (“In deciding whether the district court erred by admitting [the defendant’s]
confession we must ask two questions. First, we must ask whether the authorities had
probable cause to arrest [the defendant] . . . . Second, we must ask whether, assuming the
authorities lacked probable cause, the confession should have been excluded as the fruit
of a poisonous tree, or whether some intervening event had purged the taint of the
improper arrest thereby rendering the confession admissible.”).
Here, the District Court failed to make any factual determinations or conclusions
of law on the record with respect to probable cause.3 A district court is not required to
make written factual findings, however Federal Rule of Criminal Procedure 12(d)
requires that “[w]hen factual issues are involved in deciding a motion, the court must
state its essential findings on the record.” Fed. R. Crim. P. 12(d). Because the District
Court did not make any findings on the record as to probable cause or articulate a
conclusion of law with respect to whether there was probable cause for arrest, we will
vacate the District Court’s order denying the motion to suppress and remand for the
District Court to determine whether there was probable cause for Thomas’s arrest and, if
not, whether his statement was sufficiently attenuated from the unlawful arrest.
2.
3
Although the District Court noted that “the weight of credibility is on the side of the
government,” this comment was made in the context of discussing the circumstances
under which Thomas’s statement was made. Thomas App. 208:20-21.
12
Gabriel argues that introduction of Thomas’s statement violated his Sixth
Amendment right to confrontation. Gabriel argues that even though Thomas’s statement
was sanitized, when placed in the context of other evidence admitted at trial, the
statement incriminates him. More specifically, in his statement, Thomas mentioned that
he met up with the others involved with the robbery at around 9:00 a.m. At trial, a
neighbor testified that she saw Gabriel, Fredericks, and Thomas with others at
approximately 9:00 a.m. Thomas also indicated that the plan was devised at Charlotte
Amalie High School, and the neighbor testified that Gabriel and Fredericks were students
there. Gabriel argues that the jury could connect Thomas’s statement to this other
evidence and conclude that Gabriel was one of the people referred to in Thomas’s
statement. Gabriel argues that admission of the statement in light of the other testimony
offered at trial violates his Sixth Amendment rights.
The Confrontation Clause of the Sixth Amendment guarantees the right of a
criminal defendant “to be confronted with the witnesses against him.” U.S. Const.
amend. VI. The Supreme Court has interpreted the Sixth Amendment to include the right
to cross-examine witnesses. See Pointer v. Texas, 380 U.S. 400, 404 (1965). In Bruton
v. United States, 391 U.S. 123 (1968), the Supreme Court held that, even with a limiting
instruction, “the introduction of a non-testifying defendant’s out-of-court statement,
which directly implicated his co-defendant by name, violated the Confrontation Clause
right of the co-defendant.” United States v. Hardwick, 544 F.3d 565, 572 (3d Cir. 2008).
The Court found a limiting instruction to be inadequate because it concluded that “there
are some contexts in which the risk that the jury will not, or cannot, follow instructions is
13
so great, and the consequences of failure so vital to the defendant, that the practical and
human limitations of the jury system cannot be ignored.” Bruton, 391 U.S. at 135.
Following Bruton, in Richardson v. Marsh, 481 U.S. 200 (1987), the Supreme Court
considered the introduction of a redacted confession made by a co-defendant. This
confession was “redacted to omit any reference to the defendant, but the defendant [was]
nonetheless linked to the confession by evidence properly admitted against him at trial.”
Richardson, 481 U.S. at 202. The trial court had also issued a limiting instruction to the
jury. The Court held that “the Confrontation Clause is not violated by the admission of a
nontestifying codefendant’s confession with a proper limiting instruction when, as here,
the confession is redacted to eliminate not only the defendant’s name, but any reference
to his or her existence.” Id. at 211. The Court distinguished Richardson from Bruton on
the grounds that the confession in Bruton expressly identified the defendant, whereas in
Richardson the confession “was not incriminating on its face, and became so only when
linked with evidence introduced later at trial.” Id. at 208. In Richardson, the Supreme
Court noted that it “express[ed] no opinion on the admissibility of a confession in which
the defendant’s name has been replaced with a symbol or neutral pronoun.” Id. at 211
n. 5.
The Court addressed that question in Gray v. Maryland, 523 U.S. 185 (1998). In
Gray, a co-defendant’s confession was redacted to omit the names of two co-defendants.
In place of the co-defendants’ names, there were “blank white spaces separated by
commas.” Id. at 189. The district court gave limiting instructions directing the jury to
consider the statement against the confessing co-defendant only. The Court concluded
14
that “redaction that replaces a defendant’s name with an obvious indication of deletion,
such as a blank space, the word ‘deleted,’ or a similar symbol, still falls within Bruton’s
protective rule.” Id. at 192. The Court observed that “a jury will often react similarly to
an unredacted confession and a confession redacted in this way, for the jury will often
realize that the confession refers specifically to the defendant.” Id. at 193. In addition,
the Court surmised that “the obvious deletion may well call the jurors’ attention specially
to the removed name. By encouraging the jury to speculate about the reference, the
redaction may overemphasize the importance of the confession’s accusation—once the
jurors work out the reference.” Id. The Court concluded that the redacted statement in
Gray was like the statements in Bruton because it was “directly accusatory” and, thus,
was “powerfully incriminating.” Id. at 194. On the other hand, the statement in
Richardson was not “directly accusatory evidence . . . for it [did] not point directly to a
defendant at all.” Id. The crucial difference, the Court concluded, is the the kind of
inference that a jury must make to connect a redacted statement to the co-defendant:
Richardson’s inferences involved statements that did not refer directly to
the defendant himself and which became incriminating “only when linked
with evidence introduced later at trial.” The inferences at issue here
involve statements that, despite redaction, obviously refer directly to
someone, often obviously the defendant, and which involve inferences that
a jury ordinarily could make immediately, even were the confession the
very first item introduced at trial. Moreover, the redacted confession with
the blank prominent on its face, in Richardson’s words, “facially
incriminat[es]” the codefendant. Like the confession in Bruton itself, the
accusation that the redacted confession makes “is more vivid than
inferential incrimination, and hence more difficult to thrust out of mind.”
Id. at 196 (citations omitted) (quoting Richardson, 481 U.S. at 208).
15
The parties also cite to several of this Court’s cases including Hardwick; Priester
v. Vaughn, 382 F.3d 394 (3d Cir. 2004); and United States v. Richards, 241 F.3d 335 (3d
Cir. 2001). We agree with the Government that the facts of this case are most similar to
those in Richardson and Priester. In Priester, as in this case and unlike in Gray, the
statement was “redacted to replace all references to Priester and other participants in the
shootings with words such as ‘the other guy,’ ‘someone,’ ‘someone else,’ ‘the guy,’ and
‘another guy.’” Priester, 382 F.3d at 399. In addition, as in this case, there were many
perpetrators involved in the crime in Priester, such that “the phrases ‘the other guy’ or
‘another guy’ [were] bereft of any innuendo that tie[d] them unavoidably to Priester.” Id.
at 401. Although there was evidence introduced at other points in the trial that might
connect Gabriel to Thomas’s confession, as we held in Priester, “where ascertaining the
identity of a co-defendant in a redacted statement requires an inference drawn from
linking other evidence to the statement, the risk that the jury cannot follow limiting
instructions is not sufficiently substantial to violate the Sixth Amendment.” 382 F.3d at400 (citing Richardson, 481 U.S. at 208). Before the admission of the statement and
during the jury charge, the District Court instructed the jury that Thomas’s statement was
not to be used against anyone but Thomas. In light of this instruction and the type of
redactions made to Thomas’s statement, we conclude that the risk of the jury not
following the limiting instruction was not sufficiently substantial to violate Gabriel’s
Sixth Amendment right and we will affirm the District Court with respect to this issue.
16
B.
Both Newton and Gabriel argue that there was insufficient evidence to support
their convictions. They were convicted of conspiracy to interfere with commerce by
robbery, in violation of 18 U.S.C. § 1951(a) (Count One); interference with commerce by
robbery, in violation of 18 U.S.C. §§ 1951(a) and 2 (Count Two); and conspiracy to
possess a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(o)
(Count Four).4
Newton argues that “[t]he prosecutor presented no evidence that directly [linked]
Newton to the crimes he was charged for.” Newton Br. 11. He points out that there was
no DNA evidence linking him to the crime, no eyewitness placing him at the crime scene,
and no weapons found on him when he was arrested. According to Newton, the only
witness that tied him to the crime was Detective Gumbs, who incorrectly testified at trial
that Newton was wearing dark clothes when he found him in the bushes.
Gabriel also argues that there was insufficient evidence to support his conviction.5
No witnesses testified that they saw Gabriel enter or exit Imperial. The eyewitnesses
4
The standard for challenging the sufficiency of the evidence is “highly deferential, and
we will overturn a verdict only ‘if no reasonable juror could accept the evidence as
sufficient to support the conclusion of the defendant’s guilt beyond a reasonable doubt.’”
United States v. Caraballo-Rodriguez, 726 F.3d 418, 430–31 (3d Cir. 2013) (quoting
United States v. Coleman, 811 F.2d 804, 807 (3d Cir. 1987)).
5
The Government argues that Gabriel has forfeited his sufficiency argument because he
failed to develop it adequately. See Skretvedt v. E.I. DuPont De Nemours, 372 F.3d 193,
202–03 (3d Cir. 2004) (“[A]n issue is waived unless a party raises it in its opening brief,
and for those purposes a passing reference to an issue will not suffice to bring that issue
before this court.” (quoting Laborers’ Int’l Union v. Foster Wheeler Corp., 26 F.3d 375,
398 (3d Cir. 1994))). Gabriel did not provide thorough briefing on his sufficiency
17
who testified could not identify any of the robbers because they were all wearing masks.
Seven masks were recovered by VIPD, but forensic analysis did not match any of the
hairs or fibers to Gabriel. One of the hairs recovered from one of the masks was from a
Caucasian individual.
Count One charges conspiracy to interfere with commerce by robbery in violation
of 18 U.S.C. § 1951(a) (Hobbs Act robbery). Section 1951(a) provides,
Whoever in any way or degree obstructs, delays, or affects commerce or the
movement of any article or commodity in commerce, by robbery or
extortion or attempts or conspires so to do, or commits or threatens physical
violence to any person or property in furtherance of a plan or purpose to do
anything in violation of this section shall be fined under this title or
imprisoned not more than twenty years, or both.
18 U.S.C. § 1951(a). To prove interference with commerce by robbery, “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] commerce
or the movement of any article or commodity in commerce.’” United States v. Walker,
657 F.3d 160, 178–79 (3d Cir. 2011) (quoting 18 U.S.C. § 1951(a)). To establish that a
conspiracy existed, “the government must establish a unity of purpose between the
alleged conspirators, an intent to achieve a common goal, and an agreement to work
together toward that goal. The government may prove these elements entirely by
circumstantial evidence.” United States v. Gibbs, 190 F.3d 188, 197 (3d Cir. 1999)
(footnote and citation omitted). Indeed, “[t]he existence of a conspiracy ‘can be inferred
from evidence of related facts and circumstances from which it appears as a reasonable
argument. However, he did address it in his opening brief and articulated an argument in
favor of his position. His argument is not forfeited, but it is meritless.
18
and logical inference, that the activities of the participants . . . could not have been carried
on except as the result of a preconceived scheme or common understanding.’” Id.(quoting United States v. Kapp, 781 F.2d 1008, 1010 (3d Cir. 1986)). Here, there is
“substantial evidence from which any rational trier of fact could find guilty beyond a
reasonable doubt,” United States v. Iglesias, 535 F.3d 150, 155 (3d Cir. 2008), that both
Newton and Gabriel conspired to and in fact committed Hobbs Act robbery.
At trial, the Government introduced evidence that a group of men were
congregating near Imperial prior to the robbery. Video surveillance showed a group of
men dressed similarly in masks, gloves, and dark clothing enter Imperial together. While
some men held patrons and employees of Imperial at gunpoint, others smashed jewelry
cases, took the jewelry, and stuffed it into bags. Witnesses also corroborated the video
surveillance. Testimony revealed that the jewelry was imported into the Virgin Islands.
Based on this and other evidence offered at trial, a reasonable jury could conclude that
this robbery was the result of cooperative planning and execution and, thus, that there
existed a conspiracy to commit Hobbs Act robbery and that the Hobbs Act robbery did, in
fact, take place.
Additional evidence introduced at trial could lead a reasonable jury to conclude
that both Newton and Gabriel were part of the conspiracy and execution of the robbery,
thereby supporting their convictions on Counts One and Two. As to Newton, he was
apprehended by Detective Gumbs, who responded to the report of the robbery at
Imperial. Detective Gumbs observed “several black males, all dressed in black.”
Newton Appendix 31. When the men saw Detective Gumbs, they started running. One
19
of the men running was wearing “a white stocking cap [and] black jeans” and another
was wearing a white shirt and jeans and had his hair in a ponytail. Newton Supplemental
Appendix 186. Detective Gumbs continued pursuing the suspects to Fireburn Hill and
into the bushes in the Catherineberg area. Officers found clothing, handbags, shirts,
pants, gloves, sneakers, and clothing. Newton was found in the bushes. Detective
Gumbs testified that Newton’s hair was braided and that Newton was wearing dark
clothing. Newton was found next to a pair of gloves, which Newton quickly disavowed
were his. In the vicinity of where Newton was found, officers also recovered jewelry,
and the store manager recognized this jewelry as having been from Imperial.
Collectively, this evidence is sufficient for a reasonable jury to conclude that Newton
participated in Hobbs Act robbery.
With respect to Gabriel, he was identified as being among a group of men who
were seen congregating near Imperial before the robbery took place. At the time, he was
wearing red shorts and a white t-shirt. When the police found him, he was wearing the
same clothing. Although the people who robbed Imperial were wearing dark clothing,
dark clothing was found in Gabriel’s vicinity. Accordingly, the jury could reasonably
conclude that he was wearing the black clothing and had taken it off. The Government
also offered evidence that within the vicinity of where the police found Gabriel, they
found masks, bags with jewelry, firearms, and gloves. Such circumstantial evidence is
sufficient for a jury to conclude that Gabriel acted in concert with the other co-defendants
to rob Imperial.
20
Finally, sufficient evidence was presented at trial for a reasonable jury to have
found Gabriel and Newton guilty of Count Four, conspiracy to possess a firearm in
furtherance of a crime of violence in violation of 18 U.S.C. § 924(o). To obtain a
conviction under 18 U.S.C. § 924(o), the government must show that a conspiracy
existed to commit a crime of violence that entailed the use or carry of a firearm or the
possession of a firearm in furtherance of the crime. See 18 U.S.C. § 924(o) and (c). At
trial, evidence showed that the defendants brandished firearms at Imperial during the
course of the robbery. In addition, witnesses testified that shots were fired shortly after
the robbery in the area of Fireburn Hill. Accordingly, a reasonable jury could conclude
that a firearm was used, carried, or possessed during the robbery. We have held that
“Hobbs Act robbery committed while brandishing a firearm [is] a crime of violence.”
United States v. Robinson, 844 F.3d 137, 144 (3d Cir. 2016) (emphasis removed). This
evidence, in conjunction with the evidence (discussed above) supporting the conspiracy
charges is sufficient for a reasonable jury to have found Newton and Gabriel guilty of
conspiracy to possess a firearm in furtherance of a crime of violence.
C.
On appeal, Fredericks challenges the constitutionality of the Hobbs Act. Because
he did not raise this issue before the District Court, the standard of review is plain error.
Gov’t of Virgin Islands v. Vanterpool, 767 F.3d 157, 162 (3d Cir. 2014). Federal Rule of
Criminal Procedure 52(b) provides this Court with limited authority to consider and
correct errors that were forfeited because they were not raised in the District Court.
21
Under this standard, “an appellate court may, in its discretion, correct an
error not raised at trial only where the appellant demonstrates that (1) there
is an ‘error’; (2) the error is ‘clear or obvious, rather than subject to
reasonable dispute’; (3) the error ‘affected the appellant’s substantial rights,
which in the ordinary case means’ it ‘affected the outcome of the district
court proceedings’; and (4) ‘the error seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.’”
Id. at 162 (quoting United States v. Marcus, 560 U.S. 258, 262 (2010)). For an error to
be “clear or obvious,” it must be clear under current law. Id. (citing United States v.
Olano, 507 U.S. 725, 731–37 (1993)). In other words, “if the statute was
unconstitutional, then the District Court would have committed error when it applied the
statute; but even so, we could reverse only if the error were plain under current law.” Id.Fredericks raises two challenges to the Hobbs Act. First, he argues that
application of the Hobbs Act to the facts of this case would exceed Congress’s power to
legislate under the Commerce Clause. Fredericks asserts that under United States v.
Lopez, 514 U.S. 549 (1995), and its progeny, United States v. Morrison, 529 U.S. 598(2000), Jones v. United States, 529 U.S. 848 (2000), and National Federation of
Independent Business v. Sebelius, 567 U.S. 519 (2012), Congress’s power to legislate
under the Commerce Clause is limited to regulation of “channels of interstate
commerce,” “instrumentalities of interstate commerce,” and “activities that substantially
affect interstate commerce.” Fredericks Br. 7. Fredericks argues that “[i]ntrastate
robbery of a retail store does not implicate channels or instrumentalities of interstate
commerce” nor does it “substantially affect[] interstate commerce.” Id. Accordingly, he
argues that “when the Hobbs Act is applied to the facts of this case, its application would
be beyond the bounds of the Commerce Clause.” Id.22
Under current law, application of the Hobbs Act in this case is not plainly
unconstitutional. “[W]e have already rejected the argument that Lopez and its progeny
require proof of a ‘substantial effect’ on commerce in an individual case in order to show
a Hobbs Act violation.” United States v. Urban, 404 F.3d 754, 766 (3d Cir. 2005); see
also United States v. Powell, 693 F.3d 398, 401–06 (3d Cir. 2012); United States v.
Walker, 657 F.3d 160, 177–84 (3d Cir. 2011); United States v. Clausen, 328 F.3d 708,
710–11 (3d Cir. 2003). We only require “proof of a de minimis effect on interstate
commerce” in order to support a conviction under the Hobbs Act. Powell, 693 F.3d at
402 (quoting Walker, 657 F.3d at 180). The effect on interstate commerce may be
“slight, subtle or even potential.” United States v. Haywood, 363 F.3d 200, 210 (3d Cir.
2004) (quoting Jund v. Town of Hempstead, 941 F.2d 1271, 1285 (2d Cir. 1991)). This
requirement is met if the Government proves that the establishment that was robbed sold
goods that traveled in interstate commerce. See id. at 209–11. Here, it was established
that Imperial purchased all of its goods from outside the Virgin Islands and that
approximately 350 of these items (valued at over $2 million) were stolen during the
robbery. Because Imperial imported goods from outside the Virgin Islands, the interstate
commerce requirement is satisfied and the Hobbs Act is not unconstitutional as applied to
the facts of this case.
Second, Fredericks argues that “to allow an application of the Hobbs Act to the
facts of [this] case would transform Hobbs Act robbery into a general police power the
likes of which has been repeatedly rejected by the Supreme Court . . . and thus violates
the Tenth Amendment.” Fredericks Br. 8. The Tenth Amendment provides that “[t]he
23
powers not delegated to the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people.” U.S. Const. amend. X.
Fredericks argues that the power to regulate local criminal activity lies at the heart of the
police powers reserved to the states. See Fredericks Br. 31–32 (citing Bond v. United
States, 134 S. Ct. 2077 (2014)).
Fredericks and the Government disagree as to whether or not the Tenth
Amendment applies to the Virgin Islands. We need not address this argument because
we conclude that the Hobbs Act, as applied to this case, does not violate the Tenth
Amendment. Under the Commerce Clause, Congress is delegated the power to regulate
interstate commerce. The Hobbs Act requires a nexus to interstate commerce and is,
therefore, a valid exercise of federal government power under the Commerce Clause.
The Tenth Amendment does not prevent the federal government from enforcing a validly
enacted federal law. See, e.g., United States v. Bailey, 990 F.2d 119, 126 (4th Cir. 1993)
(“The Hobbs Act is a well recognized federal statute, and the Tenth Amendment does not
prohibit the federal government from enforcing its laws, even when there are state laws
addressing the same criminal act.”); United States v. Jarrett, 705 F.2d 198, 203 (7th Cir.
1983) (“The Hobbs Act presents no unconstitutional intrusion upon the sovereignty of the
states and, thus, is a constitutional exercise of the commerce power.”); Carbo v. United
States, 314 F.2d 718, 733 (9th Cir. 1963) (“The contention that § 1951 is not within the
power of Congress and contravenes the Tenth Amendment was refuted . . . .”). Because
Congress enacted the Hobbs Act in valid exercise of its constitutional authority,
application of the Hobbs Act to this case does not violate the Tenth Amendment.
24
Because application of the Hobbs Act in this case is not unconstitutional, we will
affirm Fredericks’s convictions under Counts One and Two for violation of the Hobbs
Act. In addition, we will affirm his conviction under Count Four, for which the Hobbs
Act violation was the predicate.
D.
Fredericks and Newton both contend that their Due Process rights were violated
during trial because at least one juror saw at least one of them in handcuffs.6 Newton
argues that his Sixth and Fourteenth Amendment rights were violated because the jury
saw him in handcuffs, which “depicted Newton as a dangerous criminal, despite the fact
that the government had not proven him to be guilty at that point.” Newton Br. 15.7
Newton moved for severance, and the District Court denied his motion. Fredericks
argues that his Fifth and Fourteenth Amendment rights were violated because the jury
saw Newton and possibly Fredericks in handcuffs.8 Fredericks moved for a mistrial, and
the District Court denied his motion.
6
We exercise plenary review over constitutional challenges presented on appeal. Gov’t
of Virgin Islands v. Davis, 561 F.3d 159, 163 (3d Cir. 2009).
7
The Government argues that Newton has forfeited the issue because he failed to develop
it sufficiently, devoting only two sentences to the argument in his brief and citing no case
law. Gov’t (Newton) Br. 27 (citing Skretvedt, 372 F.3d at 202–03 (“[A]n issue is waived
unless a party raises it in its opening brief, and for those purposes a passing reference to
an issue will not suffice to bring that issue before this court.” (quoting Laborers’ Int’l
Union, 26 F.3d at 398))). Although Newton did not provide much briefing on the issue,
we will not consider it forfeited. However, we also find it to be without merit.
8
Fredericks argues that “[t]he State must prove ‘beyond a reasonable doubt that the
[shackling] error complained of did not contribute to the verdict obtained.’” Fredericks
Br. 36 (quoting Deck v. Missouri, 544 U.S. 622, 635 (2005)). However, this standard
applies “where a court, without adequate justification orders the defendant to wear
shackles that will be seen by the jury.” Deck, 544 U.S. at 635. In such a case, “the
25
“[T]he Fifth and Fourteenth Amendments prohibit the use of physical restraints
visible to the jury absent a trial court determination, in the exercise of its discretion, that
they are justified by a state interest specific to a particular trial.” Deck v. Missouri, 544
U.S. 622, 629 (2005). At issue in this case is whether a brief, inadvertent observation of
a defendant in handcuffs offends a defendant’s constitutional rights. We have held that
“[t]he fact that jurors may briefly see a defendant in handcuffs is not so inherently
prejudicial as to require a mistrial.” United States v. Chrzanowski, 502 F.2d 573, 576 (3d
Cir. 1974). Likewise, other Courts of Appeals have held that “brief, inadvertent
observation of a defendant in custody does not compel reversal in the absence of an
affirmative showing of actual prejudice.” United States v. Halliburton, 870 F.2d 557, 561
(9th Cir. 1989); see also United States v. Olano, 62 F.3d 1180, 1190 (9th Cir. 1995)
(“Because a jury’s brief or inadvertent glimpse of a defendant in physical restraints is not
inherently or presumptively prejudicial to a defendant, Olano must demonstrate actual
prejudice to establish a constitutional violation. Olano did not examine the jury and has
adduced no other evidence probative of prejudice. He has failed to establish actual
prejudice.” (citations and footnote omitted)); United States v. Pina, 844 F.2d 1, 8 (1st Cir.
1988). The concern of prejudice here is further mitigated by the fact that the District
Court gave the jury an instruction cautioning the jury not to draw any inferences from the
employment of security practices. Cf. Wright v. Texas, 533 F.2d 185, 188 (5th Cir.
defendant need not demonstrate actual prejudice to make out a due process violation.”
Id. Here, Fredericks “preserved this issue for appellate review by asking for a mistrial.”
Fredericks Br. 35. We review the denial of this motion for a mistrial for abuse of
discretion. United States v. Rivas, 493 F.3d 131, 139 (3d Cir. 2007).
26
1976) (“It must be assumed that rational jurors would understand and follow a proper
instruction that handcuffing persons in custody for transportation to and from the
courtroom is a reasonable precaution that in no way reflects upon the presumption of
innocence or the individual propensities of any defendant.”).
Here, the jurors may have only briefly seen Newton and perhaps Fredericks in
shackles, and the District Court gave an appropriate jury instruction. Additionally,
neither Newton nor Fredericks has demonstrated “clear and substantial prejudice
resulting in a manifestly unfair trial.” United States v. Reicherter, 647 F.2d 397, 400 (3d
Cir. 1981). Accordingly, we will affirm Newton’s and Fredericks’s convictions.
IV.
For the foregoing reasons, the District Court will be affirmed in part and vacated
and remanded in part for proceedings not inconsistent with this opinion.
27