United States v. Humbert , 336 F. App'x 132 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
7-2-2009
USA v. Humbert
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1492
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 05-1492
_____________
UNITED STATES OF AMERICA
v.
ERIC HUMBERT,
a/k/a
BASIL
Eric Humbert,
Appellant
On Appeal from the United States District Court
for the District of Eastern Pennsylvania
(No. 04-cr-00192-2)
District Judge: Honorable R. Barclay Surrick
_____________
No. 07-3368
_____________
UNITED STATES OF AMERICA
v.
ERIC HUMBERT,
Appellant
On Appeal from the United States District Court
for the District of Eastern Pennsylvania
(No. 04-cr-00506-1)
District Judge: Honorable Berle M. Schiller
Argued May 28, 2009
Before: FISHER, CHAGARES, AND COWEN, Circuit Judges.
(Filed: July 2, 2009)
OPINION OF THE COURT
Christopher G. Furlong (Argued)
22 East Third Street
Media, PA 19063
Counsel for Appellant
Kevin R. Brenner (Argued)
Office of the United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Counsel for the United States
CHAGARES, Circuit Judge.
Eric Humbert (“Humbert”), appeals six issues arising from his criminal
convictions for armed bank robbery (Case No. 05-1492) and carjacking (Case No. 07-
3368). We will affirm.
I.
Because we solely write for the parties, we will only briefly summarize the essential
facts.
A. The Carjacking Case (Case No. 07-3368)
2
At Humbert’s trial, the Government introduced evidence of the following. On May
27, 2003, Humbert, along with Kevin Jenkins and Rasheen Jones, drove from Philadelphia
to New Jersey in order to steal a car and then rob a bank known as “The Bank.” Humbert
told Jones to rent a Dodge pick-up truck from Enterprise Rent-A-Car in Upper Darby,
Pennsylvania, which was to be used as a “blocker” – a decoy that would block the
detection of a second car, which would be carrying the stolen money and the guns used
during the robbery.
The three men then drove to Salem County, New Jersey. Humbert and Jones were
in the rental truck and Jenkins was in his station wagon. All three men had guns. After
they arrived in Salem County, Jenkins parked his car near a Cracker Barrel restaurant and
got into the truck with Humbert and Jones. The three men then looked for a minivan that
they could steal to use during the bank robbery.
While in Carney’s Point, New Jersey, they saw a minivan outside of the home of an
elderly couple, Mr. and Mrs. Robinson, and decided they wanted to take it. The
Robinsons’ home was on a cul-de-sac next to the parking lot for a business called
Connectiv. Jenkins and Humbert entered the home, while Jones waited in the truck.
Humbert and Jenkins ordered the Robinsons to turn over the keys to the van and their
money, then Jenkins tied up Mr. Robinson while Humbert sexually assaulted Mrs.
Robinson and tied her up. They then fled the house and took the Robinsons’ minivan.
Humbert’s DNA was recovered from semen on Mrs. Robinson.
3
The plan to rob the bank was abandoned. While Jones was waiting outside of the
Robinsons’ home, he was approached by a security guard from Connectiv, and then fled to
Philadelphia. The security guard wrote down the license plate number of the truck that
Jones was driving. Before they drove back to Philadelphia, Humbert and Jenkins left the
minivan in a parking lot.
On September 23, 2004, a grand jury in the Eastern District of Pennsylvania
returned a superseding indictment charging Humbert with conspiracy to commit armed
bank robbery in violation of 18 U.S.C. § 371; conspiracy to commit carjacking in violation
of 18 U.S.C. § 371; carjacking, in violation of 18 U.S.C. § 2119; and two counts of using
and possessing a firearm in furtherance of a crime of violence in violation of 18 U.S.C. §
924(c).1
Humbert filed several motions to suppress DNA evidence, which were denied.
Humbert was convicted of all of the charges against him, and was sentenced to a total of
835 months of imprisonment, a five-year term of supervised release, restitution in the
amount of $600, and a special assessment of $500.
B. The Bank Robbery Case (Case No. 05-1492)
1
Jenkins and Jones were charged with conspiracy to commit armed bank robbery
in violation of 18 U.S.C. § 371; conspiracy to commit carjacking in violation of 18 U.S.C.
§ 371; and carjacking, in violation of 18 U.S.C. § 2119. Jenkins was also charged with
two counts of using and possessing a firearm in furtherance of a crime of violence, in
violation of 18 U.S.C. § 924(c). Jones pled guilty and Jenkins’s trial was severed. He
currently has an appeal pending in this Court.
4
The bank robbery case arises out of three bank robberies that took place between
June 2003 and July 2003. On June 20, 2003, Humbert and Shannon Johnson robbed a
Fleet Bank in Wynnewood, Pennsylvania. On July 11, 2003, Humbert, Johnson, and
Maynard Patterson perpetrated an armed robbery of the Pan Asia Bank in Cheltenham,
Pennsylvania. On July 18, 2003, Humbert, Johnson, Patterson, and Joseph Allen
perpetrated an armed robbery of a Citizens Bank in Philadelphia, Pennsylvania.
On July 13, 2004, a grand jury in the Eastern District of Pennsylvania returned a
superseding indictment charging Humbert with conspiracy to commit armed bank robbery
in violation of 18 U.S.C. § 371; bank robbery, in violation of 18 U.S.C. § 2113(a); two
counts of armed bank robbery, in violation of 18 U.S.C. § 2113(d); two counts of using
and carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c); and
the possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
Prior to the trial, Humbert filed a motion to suppress DNA evidence. The motion
was denied, and Humbert was convicted on all seven counts. He was sentenced to a total
of 720 months of imprisonment, five years of supervised release, restitution in the amount
of $30,008, and a special assessment of $700.
II.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 and we have
jurisdiction under 28 U.S.C. § 1291. Humbert makes six arguments on appeal: (1) in both
trials, there was insufficient evidence to conclude that the banks he robbed or conspired to
5
rob were FDIC insured; (2) in both trials, the District Court erred in denying his motions to
suppress DNA evidence; (3) in the bank robbery case, the prosecutor improperly vouched
for government witnesses; (4) venue was improper in the Eastern District of Pennsylvania
in the carjacking case; (5) he is entitled to a new trial in the carjacking case because the
District Court questioned two defense witnesses about their Fifth Amendment privileges in
front of a jury; and (6) he is entitled to a new trial in the bank robbery case because the
District Court improperly admitted Federal Rule of Evidence 404(b) evidence. We will
affirm on all of the issues.
III.
Humbert first contends that the evidence at trial was insufficient for the
Government to meet its burden to prove beyond a reasonable doubt that the four banks at
issue were “banks” within the meaning of the applicable statute, 18 U.S.C. § 2113,
because there was insufficient proof that they were FDIC insured. See 18 U.S.C. §
2113(f) (“[T]he term ‘bank’ means . . . any institution the deposits of which are insured by
the Federal Deposit Insurance Corporation.”). Although the Government could have
presented and perhaps should have presented more evidence on this issue, we ultimately
find that it met its burden here.
This Court reviews this issue with regard to the bank robbery case, Case No. 05-
1492, for plain error, as Humbert failed to preserve this argument. United States v. Barel,
939 F.2d 26, 37 (3d Cir. 1991). There was no plain error here, as the evidence was
6
sufficient to show that all three banks — Fleet Bank, Pan Asia Bank, and Citizens Bank —
were insured by the FDIC. See Supplemental Appendix (Supp. App.) 40-41, 52-53, 223
(Pan Asia Bank); Supp. App. 86, 222 (Citizens Bank); and Supp. App. 9-11, 221 (Fleet
Bank).
We review for sufficiency of the evidence whether the bank in Case No. 07-3368,
the carjacking case, was FDIC insured. United States v. Silveus, 542 F.3d 993, 1002 (3d
Cir. 2008). This is a “particularly deferential standard of review, [where] viewing the
record in the light most favorable to the prosecution . . . [we] determine whether any
rational trier of fact could have found proof of guilt beyond a reasonable doubt based on
the available evidence.” Id. (citations and quotation marks omitted). We find that the
evidence was sufficient to show that the institution at issue in that trial — The Bank —
was FDIC insured, as at trial, an employee of The Bank testified that it was FDIC insured,
and this testimony was undisputed. Cf. United States v. McIntosh, 463 F.2d 250 (3d Cir.
1972) (uncontradicted testimony by Assistant Vice President of a bank who was custodian
of the charters of the bank that the bank was FDIC insured was sufficient to show that it
was).2
Humbert also contends that his DNA evidence should have been suppressed.
2
Humbert also argues that, even if this Court finds that the Government did prove
beyond a reasonable doubt that the banks were FDIC insured, they were still not “banks”
under the statute because the FDIC does not insure against bank robbery. We find this
argument meritless.
7
Humbert’s DNA was collected by Pennsylvania in 2003 when he was released from jail
after serving time for a robbery offense. This sample was then used as a comparison to
DNA recovered from Mrs. Robinson after the carjacking, and was a match. In December
2004, after Humbert was identified as a suspect in the bank robbery and carjacking cases,
federal authorities applied for a search warrant for Humbert’s DNA. The affidavit in
support of the warrant requested a new sample of DNA that could be used to corroborate
the match that had been already made, and stated that Humbert’s DNA could be used to
test against other material that could contain DNA that had been collected from the bank
robberies.
Humbert contends that the affidavit was insufficient for two reasons. First, with
regard to both appeals, he argues that it relies on the blood sample that had been obtained
upon his release from Pennsylvania state prison, but that sample was acquired in
contravention of Pennsylvania law. With regard to the carjacking case, Case No. 07-3368,
he contends that paragraph 5 of the affidavit contains false information made with reckless
disregard for the truth in violation of Franks v. Delaware, 438 U.S. 154 (1978). If this
information is excised from the affidavit, Humbert argues, there is no probable cause. We
disagree.
In reviewing a suppression motion, “we review the District Court’s factual
determinations for clear error and exercise plenary review over the application of the law
to those facts.” United States v. Price, 558 F.3d 270, 276 (3d Cir. 2009) (citation omitted).
8
It was not error to use Humbert’s original blood sample to support a probable cause
determination to obtain a new sample. Even if his DNA was obtained in violation of
Pennsylvania law — an issue which we do not decide — that does not establish a Fourth
Amendment violation which should result in its exclusion.3 Cf. Virginia v. Moore, 128 S.
Ct. 1598 (2008) (upholding an arrest made by a police officer that was supported by
probable cause even though it was made in violation of state law). The exclusionary rule
“forbids the use of improperly obtained evidence at trial.” Herring v. United States, 129 S.
Ct. 695, 699 (2009). However, “suppression is not an automatic consequence of a Fourth
Amendment violation. Instead, the question turns on the culpability of the police and the
potential of exclusion to deter wrongful police conduct.” Id. at 698. In Herring, the
Supreme Court explained that the exclusionary rule should be used to “deter deliberate,
reckless, or grossly negligent conduct, or in some circumstances recurring or systemic
negligence.” Id. at 702.
Humbert’s DNA was already on file because it had been collected by Pennsylvania
authorities upon his release from state prison. FBI Agent Vito Roselli, who wrote the
affidavit in support of the warrant to obtain a new sample from Humbert, took no part in
obtaining the original sample. Instead, he relied on a sample already contained in a
database. There was no evidence that Roselli was “deliberate, reckless, or grossly
3
Humbert, notably, does not argue that a Fourth Amendment violation occurred
here.
9
negligent” in relying on the sample, and there was no evidence that there was “recurring or
systemic negligence” in how the database was maintained or in how Pennsylvania
obtained the samples. Therefore, the sample did not have to be excised from the warrant.
In the carjacking case only, Humbert takes issue with paragraph 5 of the affidavit in
support of the warrant, which states:
Pennsylvania State Police DNA laboratory drew blood from Humbert on
January 8, 2003, because he is a convicted sexual offender and a
Pennsylvania Megan’s Law registrant.
Supp. App. 5. It is undisputed that this was error, as Humbert was neither a convicted sex
offender nor a Megan’s Law registrant. However, the National Crime Information Center
(“NCIC”) Database report states that Humbert was registered as a sexual offender with the
Megan’s Law Unit in Harrisburg.
Under Franks v. Delaware, if a defendant establishes by a preponderance of the
evidence that an affiant included “a false statement” that was made “knowingly and
intentionally, or with reckless disregard for the truth,” in an affidavit in support of
probable cause, and the false information is excised from the affidavit and without it, there
is no probable cause, the fruits of the search warrant should be suppressed. 438 U.S. at
155-56.
In analyzing the statements here, the District Court concluded that: “As to
[p]aragraph 5, I find that the reference to convicted sex offender and a Pennsylvania
Megan’s law registrant was absolutely wrong, it was false. And it may have even been
10
reckless, but it’s not material.” Supp. App. 287. The District Court held that there was
probable cause even without these statements because it was “established in large part by
the match between [Humbert’s] previously collected DNA sample with the DNA sample
obtained at the crime scene.” Supp. App. 231. We find that the statements were not
reckless, and that even if they were excised, there was still enough information in the
affidavit to support a probable cause finding.
“[G]overnment agents should generally be able to presume that information
received from a sister governmental agency is accurate.” United States v. Yusuf, 461 F.3d
374, 378 (3d Cir. 2006). However, a defendant may still be able to show that an officer
acted recklessly in relying on the information by meeting a two-pronged test. First, he
must “show that the information would have put a reasonable official on notice that further
investigation was required.” Id. If the defendant can establish that this is so, he then “may
establish that the officer acted recklessly by submitting evidence: (1) of a systemic failure
on the agency’s part to produce accurate information upon request; or (2) that the officer’s
particular investigation into possibly inaccurate information should have given the officer
an obvious reason to doubt the accuracy of the information.” Id. In making the statement
that Humbert was a “Pennsylvania Megan’s Law registrant,” Roselli was relying on
information that he obtained from the NCIC database stating the same. Including this
information was not reckless, because Humbert did not show that Roselli should have been
on notice that further investigation was required. Agent Roselli’s conclusion from this
11
information that Humbert was a convicted sex offender is likewise not reckless. While a
Megan’s Law registrant does not necessarily have to be a convicted sex offender see 42
Pa. Cons. Stat. Ann. § 9795.1, there is no indication that Roselli should have known to
look further, particularly because the information contained in the NCIC database stated
that Humbert was a registered sex offender. Therefore, we find that the statements were
not reckless. Even if we were to find that they were reckless, however, and should have
been excised, the DNA evidence does not need to be suppressed, as we agree with the
District Court that the match between Humbert’s original DNA sample and the DNA
found on Mrs. Robinson establish probable cause to obtain a new sample of Humbert’s
DNA. See Price, 558 F.3d at 282 (“Probable cause exists if, under ‘the totality-of-the-
circumstances . . . the issuing magistrate [makes the] practical, common-sense decision
[that], given all the circumstances set forth in the affidavit before him . . . there is a fair
probability that contraband or evidence of a crime will be found in a particular place.”)
(citation and quotation marks omitted, brackets in original) .4
Humbert next argues that he is entitled to a new trial because the prosecutor
vouched for the veracity of the Government witnesses during her closing statement
rebuttal in the bank robbery case, Case No. 05-1492. We disagree. “Vouching constitutes
4
It is for this reason that Humbert’s other contention — that the inclusion of this
information was “intended to convey the impression” that “a prior conviction of a sexual
nature made it more likely than not that he was guilty of this one as well” — also fails.
Appellant Br. at 39.
12
an assurance by the prosecuting attorney of the credibility of a Government witness
through personal knowledge or by other information outside of the testimony before the
jury.” United States v. Walker, 155 F.3d 180, 184 (3d Cir. 1998). Humbert failed to
preserve this argument, so we review for plain error. Id. at 187-88. There was no plain
error here. The only statement that could arguably be considered vouching is the
prosecutor’s statement that “there was no motive for any of them [the government
witnesses] to identify him [Humbert].” Supp. App. 96. Even if this was considered
vouching, there was no plain error here, as this comment did not “undermine the
fundamental fairness of the trial and contribute to a miscarriage of justice.” See Walker,
155 F.3d at 188 (citations and quotation marks omitted).
In the carjacking case, Case No. 07-3368, Humbert argues that venue was improper
in the Eastern District of Pennsylvania, where the trial was held, and that proper venue
was in New Jersey because that is where the Robinsons lived and where the target bank
was located. We disagree. “A defendant in a criminal trial has a constitutional right to be
tried in the district in which the crime was committed.” United States v. Perez, 280 F.3d
318, 327 (3d Cir. 2002). However, objections to venue can be waived. Id. at 328.
“[A]ny offense . . . begun in one district and completed in another, or committed in
more than one district, may be . . . prosecuted in any district in which such offense was
begun, continued, or completed.” 18 U.S.C. § 3237(a). See also United States v.
Robinson, 167 F.3d 824, 829 (3d Cir. 1999) (“The United States can bring a prosecution in
13
any district where a conspiracy was begun, continued, or completed.”). Here, the
conspiracy began in Philadelphia, so venue was proper in the Eastern District of
Pennsylvania. Supp. App. 109-11 (Jones testified that he and Humbert had guns when
they rented a car and drove from Philadelphia to New Jersey). Furthermore, while
Humbert did put venue in issue, he never requested a venue jury instruction. Perez, 280
F.3d at 327 (failure to instruct jury about proper venue when venue is alleged without a
facially obvious defect is only reversible error if, among other requirements, the defendant
“timely requests a jury instruction.”). Therefore, this argument is without merit.
Humbert next contends that the District Court committed reversible error in the
carjacking case, Case No. 07-3368, because it advised two witnesses, Sean Ferrell and
Marcel Harper, of their Fifth Amendment rights in the presence of the jury. We review for
plain error as Humbert failed to preserve this argument. United States v. Berry, 553 F.3d
273, 279 (3d Cir. 2009). On direct examination by Humbert, Sean Ferrell testified that he
was in jail awaiting a trial on drug and weapons charges. Joint Appendix (JA) 115. After
a sidebar where the prosecutor asked the District Court to advise the witness of his Fifth
Amendment rights, the following exchange took place between the District Court and
Ferrell:
Q: Mr. Ferrell, do you have an attorney?
A: Yes.
Q: And what’s his name?
14
A: [The name] . . . .
Q: Did you have a chance to confer with your lawyer regarding testifying in this
case?
A: Yes.
Q: And after that conversation with him, it’s your decision to testify?
A: Yes.
JA 116-17. Similarly, during his direct examination by Humbert, Marcel Harper testified
that he was incarcerated and awaiting trial on a robbery. JA 119. The prosecutor then
asked for a similar cautionary instruction to be given to Harper as was given to Ferrell. Id.The following exchange then took place between the District Court and Harper:
Q: Do you have a lawyer, Mr. Harper?
A: Yes, sir, but I don’t see him present here today.
Q: Have you talked to your lawyer about testifying in this case?
A: No, he hasn’t been to see me.
Q: Well, let me caution you: Do you understand what the Fifth Amendment is, the
right not to incriminate yourself?
A: Yes.
Q: So there’s going to be some questions asked of you, and you may give answers
that may tend to incriminate you. So, the only thing I can advise you is if you want the
15
services of your lawyer, you’ve got to let me know; otherwise, I’ll let you testify, but you
may be putting yourself in jeopardy, that’s up to you.
A: Okay.
Q: What do you want to do?
A: I’ll proceed.
JA 119-20.
In United States v. Agee, this Court held that “questioning of a witness regarding
his knowledge of his Fifth Amendment rights must be done outside of the jury’s
presence.” 597 F.2d 350, 363 (3d Cir. 1979). Nevertheless, in Agee, although the District
Court questioned the defendant about his Fifth Amendment rights in front of the jury, we
held that a new trial was not warranted because there was “no reasonable possibility that
the trial court’s questions contributed to [the defendant’s] conviction.” Id. Indeed, “the
only inference which the jury could reasonably have drawn from the court’s questioning
and statements was that [the defendant], having been informed of his rights by the court’s
neutral questioning, was testifying of his own free will, voluntarily and without any
government compulsion.” Id. The same inference can be drawn here, especially as
Humbert’s vague allegations of prejudice do not contain any precise statements of how the
verdict was influenced by this questioning.5
5
Humbert also argues that the District Court showed bias when it did not give the
prosecution’s witness, Rasheen Jones, the same questioning about his Fifth Amendment
rights. However, as there was ample testimony that Jones took part in the crime and had
16
Finally, Humbert argues that he is entitled to a new trial in the bank robbery case,
Case No. 05-1492, because the District Court failed to instruct the jury that it should
disregard a statement from a Government witness that Humbert was involved in another
criminal investigation in violation of Federal Rule of Evidence 404(b), which prohibits the
introduction of other bad acts unless certain exceptions apply. The testimony was as
follows:
Prosecutor: [W]ere you involved as the lead investigator from [sic] an incident on
May 27, 2003?
Witness: Yes, I was.
Prosecutor: And during the course of - do you see anyone today who was involved
in that investigation?
Witness: Yes, I do.
Prosecutor: And who is that?
Witness: The gentleman in the white shirt sitting off to my right.
The witness identified the man as Humbert. JA 52-53. Humbert failed to object
immediately after the relevant questioning, only objecting to a lack of foundation when the
prosecutor asked the witness if he had obtained a cell phone number as a result of that
received a plea deal from the Government in exchange for his testimony, there was no
need to question Jones about his Fifth Amendment rights.
17
investigation. Therefore, we review for plain error. Berry, 553 F.3d at 279.6 We find
there was no plain error here because this was a very brief exchange and there is no
indication that it affected the outcome of the trial.
IV.
Based on the foregoing, we will affirm the judgements of conviction.
6
In addition, while the District Court eventually stated that it would strike the
testimony, Humbert failed to request that the District Court do so or give a curative
instruction when it went back on the record. Supp. App. 67. There was no plain error in
the District Court’s failure to give a curative instruction.
18