United States v. Green ( 1994 )

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
6-7-1994
United States of America v. Green
Precedential or Non-Precedential:
Docket 93-1605
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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 93-1605
UNITED STATES OF AMERICA
v.
MARK GREEN
a/k/a MARK WALLACE
MARK GREEN,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 92-00649-01)
Argued: March 28, 1994
Before: SLOVITER, Chief Judge,
HUTCHINSON and ROTH Circuit Judges
(File: June 7, l994 )
James N. Gross (Argued)
Philadelphia, PA 19107
Counsel for Appellant
Michael R. Stiles
United States Attorney
Walter S. Batty, Jr.
Michael P. Doss (Argued)
Assistant United States Attorneys
Philadelphia, PA 19106
Counsel for Appellee
1
OPINION OF THE COURT
SLOVITER, Chief Judge.
Appellant Mark Green was the subject of a nine-count
superseding indictment. He pled guilty to seven counts of fraud-
related charges, but proceeded to a trial before a jury on two
counts, one charging him with making threats against a federal
officer and the other charging him with making threats against
the federal officer's family. He was found guilty on both
charges. He appeals his conviction on the two counts and his
sentence on all nine counts. In the most significant issue
presented by this appeal, Green challenges the sufficiency of the
evidence to support his conviction for threatening the family of
a federal law enforcement officer. We have jurisdiction under 28
U.S.C. § 1291 (1988).
I.
In early 1992, United States Postal Inspector James
Bannan was conducting an investigation of mail and credit card
fraud involving Mark Green. In the spring of that year, Bannan
attempted to serve a grand jury subpoena on Green, which Green
refused to accept. During this period, there were two occasions
on which Bannan arrested Green. On August 28, Bannan attempted
to serve a grand jury subpoena on Green's mother, Patricia Green,
at her place of employment, which she also refused to accept.
2
On August 31, Bannan, who had previously given his work
phone number to Green, received a threat on his voice mail at
that number. The message stated:
Yeah, Bannan you better cut it the fuck out. I know
where you live at motherfucker. Your family is in
jeopardy, you better cut it out, or you're going to
start a war you can't handle. I'm going to blow up
that goddamn blue ass Camaro of yours, your [sic]
better cut it the fuck out now. I'm coming for your
family motherfucker.
Supp. App. at 1. Bannan then obtained an arrest warrant for
Green, and told Green by telephone on September 4, and again on
September 17, that a warrant had issued for his arrest in
connection with the threat. On September 14, while Bannan was on
foot, he spotted Green in a vehicle; Green slowed down, waved to
Bannan and then sped away into traffic.
A grand jury returned a two count indictment on
November 10, 1992 charging Green with threatening a federal law
enforcement officer in violation of 18 U.S.C. § 115(a)(1)(B)
(1988); threatening the family of a federal law enforcement
officer in violation of 18 U.S.C. § 115(a)(1)(A) (1988); and
causing, aiding and abetting these threats in violation of 18
U.S.C. § 2 (1988). On December 1, 1992, a superseding nine count
indictment was returned against Green which added to the original
two counts seven new counts of mail, bank and credit card fraud
and possession and uttering a forged security, which formed the
culmination of Bannan's investigation of Green.1 Green pled
1
In addition to the charges relating to the threat directed at
Bannan and his family, Green was charged with two counts of bank
fraud in violation of 18 U.S.C. § 1344 (Supp. IV 1992), two
counts of credit card fraud in violation of 18 U.S.C. § 1029
(a)(2) and (a)(3) (1988), one count of mail fraud in violation of
3
guilty to the seven new charges, and stood trial on the two
threat counts.
At trial, Clarence Webb, a close friend of Green,
testified that it was he who left the threatening message on
Bannan's machine at Green's request.2 Webb testified that he
knew nothing of Bannan's family when he placed the call. Although
Webb stated that Green instructed him to threaten Bannan, he made
no mention of Green's having suggested in any way that Webb
threaten Bannan's family.
Webb also testified that one day while he and Green
were driving together with Bannan's license plate number written
on a piece of paper on the car's console, he saw Green speak with
a friend, a bearded man driving a brown Mustang. Green told Webb
he was trying to discover where Bannan lived. Webb testified
that Green told him afterwards that he had been unable to find
this out because the car was registered to a post office box.
Robert Bonds, a Philadelphia police officer and friend
of Green, testified that in the fall of 1992, he met Green by
chance in downtown Philadelphia. Green asked Bonds if he would
run a check on a certain car to determine if it was stolen and to
determine the address of the owner. Bonds, who the government
noted is bearded, testified that he drove a brown Mustang and
that he complied with the request. Records from the Data
18 U.S.C. § 1341 (Supp. IV 1992), and two counts of uttering and
possessing forged securities of an organization in violation of
18 U.S.C. § 513 (1988 & Supp. IV 1992).
2
Apparently, Webb was not charged with any offense arising out of
the incident.
4
Processing Unit of the Philadelphia Police Department show that
Bannan's license plate number was checked on September 4, 1992.
The records indicate that Bannan's license plate was registered
to a fictitious name at a post office box.
At the close of the government's case, Green moved for
a judgment of acquittal under Federal Rule of Criminal Procedure
29, which was denied. During its closing argument the government
stated to the jury, "[s]o his [Bannan's] license plate number was
run three (3) days after the threat, and it was run at the
request of Mark Green." App. at 3-101. After Green's counsel
objected that the government had misstated the evidence, the
court instructed the jury that their recollection, and not
arguments of the parties, was controlling.
The jury returned verdicts of guilty on both counts. In
addition to enhancements not challenged here, the district court
enhanced Green's offense level by six levels because Green had
taken steps to enforce the threat and three levels because the
victims were a government official and his family. The district
court then sentenced Green to 84 months imprisonment, five years
of supervised release, and nine special assessments of $50.
II.
A.
Sufficiency of the Evidence
Green does not contest that Webb made the recorded
threat to Bannan at Green's behest. In other words, he concedes
that the evidence was sufficient to find him guilty as an aider
and abetter of the crime of "threaten[ing] to assault . . . a
5
Federal law enforcement officer . . . with intent to impede,
intimidate, or interfere with such . . . law enforcement officer
while engaged in the performance of official duties, or with
intent to retaliate against such . . . law enforcement officer on
account of the performance of official duties." 18 U.S.C.
§ 115(a)(1)(B).
Instead, Green challenges the sufficiency of the
evidence on his conviction on the separate charge of threatening
the family of a federal officer. This separate crime is covered
by section 115(a)(1)(A) which makes it a crime to:
threaten[] to assault, kidnap or murder a
member of the immediate family of . . . a
Federal law enforcement officer [with the
same intent set forth above].
18 U.S.C. § 115(a)(1)(A).
As with the threat to Bannan, Green's conviction on the
count for threatening Bannan's family was based on aiding and
abetting under the federal statute, 18 U.S.C. § 2, which
provides: "(a) Whoever commits an offense against the United
States or aids, abets, counsels, commands, induces or procures
its commission, is punishable as a principal," and "(b) Whoever
willfully causes an act to be done which if directly performed by
him or another would be an offense against the United States, is
punishable as a principal."
We have noted before that "[i]n order to establish the
offense of aiding and abetting, the Government must prove two
elements: that the substantive crime has been committed and that
6
the defendant knew of the crime and attempted to facilitate it."
United States v. Frorup, 963 F.2d 41, 43 (3d Cir. 1992).
Green does not argue, nor indeed could he in light of
the tape recording, that the threat communicated by Webb did not
constitute the substantive offense falling within section
115(a)(1)(A). Instead Green's argument appears to be that Webb
gratuitously added the reference to Bannan's family in the phone
conversation, that Green never suggested that Webb threaten
Bannan's family, and that Green neither knew of nor had any
intent to threaten Bannan's family.
Thus the issues on which the parties focused in their
briefs, including whether it is necessary that an actor must
target a particular family member, know of the existence of the
family member, or intend the threat to be communicated to the
family member before there can be a violation of section
115(a)(1)(A), are not before us. Instead, we must simply decide
whether there is enough evidence to find that Green aided and
abetted or willfully caused the threat Webb made on members of
Bannan's family.
The evidence that Green aided and abetted the threat to
Bannan which served as the basis for Green's conviction under 18
U.S.C. § 115(a)(1)(B) included Webb's testimony that he made the
threat in Green's bedroom, on Green's telephone, after Green
dialed Bannan's number, and under Green's direction and
supervision. However, he never testified that Green told him to
communicate any threat to Bannan's family, and thus it is the
conviction under 18 U.S.C. § 115(a)(1)(A) that is in question.
7
The government argues that Green set in motion the
threat Webb made to Bannan, and that his request that Webb make a
threat against a law enforcement officer also encompassed a
threat against the family of the law enforcement officer.
Whatever the scope of the doctrine of foreseeability in
connection with aiding and abetting generally, compare view set
out in Wayne R. LaFave & Austin W. Scott, Jr., Substantive
Criminal Law § 6.8(b), at 157 (1986) ("accomplice liability
extends to acts of the principal in the first degree which were a
'natural and probable consequence' of the criminal scheme the
accomplice encouraged or aided") with that at id. at 158
("'natural and probable consequences' rule of accomplice
liability . . . is inconsistent with more fundamental principles
of our system of criminal law," the view adopted by the Model
Penal Code), we believe it inapplicable here. There is no basis
to find it foreseeable that Webb would have chosen unilaterally
to expand his threat to include Bannan's family. More important,
Congress made a threat to a law enforcement officer's family a
separate crime than threat to the officer alone. We cannot
assume, therefore, that Congress intended that evidence
sufficient to prove aiding and abetting or willfully causing the
threat to the officer would also automatically extend to the
separate crime of threat to the officer's family. The rule of
lenity applicable in criminal law, if not common sense, does not
permit us to go as far as the government argues.
8
For these reasons, we will reverse Green's judgment of
conviction under 18 U.S.C. § 115(a)(1)(A) for insufficient
evidence.
B.
Evidentiary Rulings
Green makes a number of claims that would affect his
conviction for the threat to Bannan. He challenges the admission
of evidence concerning Bannan's prior arrests of Green, the
attempted service of subpoenas on Green and his mother, and
Bannan's testimony regarding Green's "flight" on seeing Bannan
following the issuance of the arrest warrant. This issue does
not require extended discussion. Bannan's prior arrests of Green
were admitted under Fed. R. Evid. 404(b). We review the district
court's rulings on the admission of evidence for abuse of
discretion. See United States v. Sampson, 980 F.2d 883, 886 (3d
Cir. 1992).
Here, the evidence regarding Bannan's attempted service
of subpoenas on Green and his mother, which they avoided, and
Bannan's prior arrests of Green showed the nature of the prior
contact between Bannan and Green and were relevant to establish
Green's motive to induce him to threaten Bannan. This evidence
was highly probative, and its admission was consistent with the
principles outlined in Huddleston v. United States, 485 U.S. 681
(1988).
Nor did the district court abuse its discretion in
admitting the evidence of Green's flight. We have held in the
past that "[e]vidence of a defendant's flight after a crime has
9
been committed is admissible to prove his consciousness of
guilt." United States v. Pungitore, 910 F.2d 1084, 1151 (3d Cir.
1990), cert. denied, 500 U.S. 915 (1991). Here, there was
evidence that Bannan had told Green that a warrant for his arrest
had issued in connection with the telephone threats. Although
Green's flight occurred some two weeks after the threats, he fled
only after spotting Bannan and acknowledging his presence.
Therefore this evidence, like Bannan's testimony regarding the
prior arrests and subpoenas, was also properly admitted under
Huddleston.
C.
The Government's Closing
Green argues that the prosecutor intentionally
misstated the evidence during his closing argument when he stated
that Bannan's license plate was run3 at Green's request three
days after the threats, and that the district court abused its
discretion in failing to admonish the government.
"[T]he appropriate inquiry [in deciding whether a
prosecutor's remarks in summation require reversal] is whether
such remarks, in the context of the entire trial, were
sufficiently prejudicial to violate defendant's due process
rights." United States v. Scarfo, 685 F.2d 842, 849 (3d Cir.
1982), cert. denied, 459 U.S. 1170 (1983). As we recently
stated, "[t]he prosecutor is entitled to considerable latitude in
summation to argue the evidence and any reasonable inferences
3
Presumably, to "run" a license plate means to have it checked
for identification of the owner.
10
that can be drawn from that evidence." United States v. Werme,
939 F.2d 108, 117 (3d Cir. 1991), cert. denied, 112 S. Ct. 1165
(1992).
Rather than a misstatement of the evidence presented at
trial, the prosecutor's remarks in this case represented a
permissible argument based on reasonable inferences which the
jury could draw from the evidence at trial. In any event, the
court sufficiently handled defendant's objection by instructing
the jury, immediately after the defense counsel's objection as
follows:
Ladies and gentlemen -- your recollection --
will control as to any basis, as to any
question as to what the evidence shows or
does not show. Counsel may make argument,
but it is your recollection that controls.
It's neither what the . . . Government's
counsel or the Defendant's counsel tells you
about the evidence.
App. at 3-101.
D.
Sentencing
Finally, Green challenges the sentence imposed by the
district court. Green first argues that the district court erred
in enhancing his offense level by six based on his conduct
"evidencing an intent to carry out such threat." United States
Sentencing Commission, Guidelines Manual, §2A6.1(b)(1) (Nov.
1992). We review the district court's findings of fact in this
regard for clear error only. See United States v. Miele, 989
F.2d 659, 663 (3d Cir. 1993).
11
Here, as we detailed above, the evidence presented at
trial amply supported the inference that Green requested that his
friend, Officer Bonds, run a check on Bannan's license plate.
This request certainly constitutes conduct evidencing an intent
to carry out the August 31 threats to Bannan and his family. This
finding is not clearly erroneous.
Next, Green argues that the court erred in enhancing
his offense level by three based on the intended victim's status
as a law enforcement agent. Green argues that because the
statute under which he was charged specifically contemplates that
the victim be a law enforcement officer (or other federal
official), an enhancement based on this criterion constitutes
double punishment.
Section 3A1.2(a) of the Sentencing Guidelines mandates
a three level increase where the victim is a government officer
or employee or a member of his or her family. Section 2A6.1
concerning "Threatening Communications" contains no provision
enhancing the sentence where the victim is a government official
or the member of her family. Thus, the §3A1.2 enhancement as
applied to the base offense level calculated under §2A6.1
involves no double counting.
This conclusion is supported by the recent decision in
United States v. Pacione, 950 F.2d 1348 (7th Cir. 1991), cert.
denied, 112 S. Ct. 3054 (1992), where the court directly
addressed, and rejected, the very argument raised by Green here.
We agree with that court that because the victim's "official
status was not . . . incorporated into the guidelines section
12
[2A6.1] which determined [defendant's] base offense level; the
§3A1.2 adjustment was necessary in order to reflect all the
elements of [defendant's] offense." Id. at 1356.
III.
For the reasons set forth above, the judgment of
conviction of Mark Green as to 18 U.S.C. § 115(a)(1)(B) will be
affirmed, the judgment of conviction as to 18 U.S.C.
§115(a)(1)(A) will be reversed, and the matter will be remanded
to the district court for resentencing.
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