United States v. Evert Thompson , 393 F. App'x 852 ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-4154
UNITED STATES OF AMERICA
v.
EVERT JEROME THOMPSON,
Appellant
Appeal from the United States District Court
for the District of New Jersey
(D.C. 3-08-CR-674-02)
District Judge: Honorable Joel A. Pisano
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 15, 2010
Before: FUENTES, VANASKIE, WEIS, Circuit Judges
(Filed: September 13, 2010)
OPINION OF THE COURT
VANASKIE, Circuit Judge.
Appellant Evert Jerome Thompson (“Thompson”) appeals a jury verdict finding
him guilty of both armed robbery in violation of 18 U.S.C. §§ 2113(a) and 2113(d), as
well as using and/or carrying a firearm during a crime of violence as proscribed by 18
U.S.C. § 924(c)(1)(A)(ii). Thompson claims that the District Court erred in: (1) denying
a motion to suppress without holding an evidentiary hearing; (2) precluding cross-
examination concerning the amount of force used to effect his arrest; (3) refusing to
compel the Government to produce the report of an officer who participated in the arrest,
but who did not testify; and (4) allowing a lay witness to testify concerning data generated
by a global positioning system (“GPS”) device. Because we find that the District Court
did not err, we will affirm.
I.
As we write only for the parties, who are familiar with the facts and procedural
history of the case, we will set forth only those facts necessary to our analysis. On
September 9, 2008, two persons robbed a Bank of America located in Iselin, New Jersey,
with a Colt .357 revolver. After fleeing the bank in a stolen black BMW, the two men
abandoned the car and entered into a tan Chevrolet Astro minivan. Unbeknownst to the
robbers, one of the stolen sacks of money contained a GPS tracking device. The GPS
device permitted police officers to monitor the stolen money’s latitude, longitude,
direction, and speed.
2
Relying upon transmissions from the GPS device, Detectives Mark Zeno, Michael
Ng, and Walter Bukowski of the Woodbridge Township Police Department drove in an
unmarked car to an intersection where they expected to intercept the black BMW. Rather
than seeing a black BMW, the detectives observed a tan Astro minivan traveling the same
coordinates as those provided by the GPS system. Consequently, the detectives
proceeded to follow the minivan. Sergeant Christian Ladaudio of the Woodland
Township Police Department’s Special Investigations Unit also responded in an
unmarked black pickup truck. The minivan, realizing that it was being followed,
accelerated to high speeds, triggering the detectives in the unmarked car to activate its
emergency lights. A high speed chase ensued and concluded with a collision between the
minivan and another vehicle.
The driver exited the damaged minivan and fled the scene on foot. Sergeant
Ladaudio pursued the driver with his vehicle. When the fleeing suspect jumped a
guardrail, Ladaudio took up the chase on foot. Detective Ng also pursued the suspect on
foot. Sergeant Ladaudio tackled the driver, who turned out to be Thompson, and Ng
assisted in putting on the handcuffs and effectuating the arrest. Meanwhile, back at the
scene of the accident, the passenger in the minivan, Sharron Graham, was arrested. Inside
the minivan, police officers recovered a white plastic bag containing $31,007.98 in cash –
the exact amount stolen from the bank. Also, police officers found attire that was worn at
the robbery, a loaded Colt .357, a Radio Shack police scanner, the car key to the BMW,
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and the GPS tracking device.
After Graham pleaded guilty to the armed bank robbery, a superseding indictment
was returned against Thompson, charging him with armed bank robbery and using and/or
carrying a firearm during a crime of violence. Prior to trial, Thompson moved to suppress
evidence gathered as a result of his arrest and search of the minivan. The motion was
denied without a hearing. After a three-day jury trial, Thompson was found guilty on
both counts.1
II.
Thompson raises four issues on appeal, which will be addressed in turn. First, he
assails the District Court’s denial of the motion to suppress without an evidentiary
hearing. Second, Thompson argues that the District Court impermissibly restricted the
scope of his cross-examination concerning the amount of force used to effect his arrest in
violation of the Sixth Amendment right of confrontation. Third, Thompson claims that
the government failed to comply with the requirements of Brady v. Maryland, 373 U.S.83
(1963), in not producing the report of a non-testifying police officer. Finally, he asserts
that the District Court erred by permitting a lay witness to provide testimony concerning
data generated by the GPS device.
A. Motion to Suppress
1
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
jurisdiction under 28 U.S.C. § 1291.
4
Thompson argues that his motion to suppress physical evidence on his person and
in the minivan established a colorable claim for relief, thus warranting an evidentiary
hearing. We review the District Court’s denial of an evidentiary hearing for abuse of
discretion. United States v. Howell, 231 F. 3d 615, 620 (9th Cir. 2000), cert. denied, 534
U.S. 831 (2001); United States v. Glass, 128 F.3d 1398, 1408 (10th Cir. 1997). We
review the District Court’s denial of a motion to suppress for clear error as to the
underlying factual findings, and exercise plenary review of the District Court’s
application of the law to the facts. United States v. Perez, 280 F.3d 318, 336 (3d Cir.
2002).
Thompson contends that the law enforcement officers lacked probable cause to
apprehend him and that the evidence seized incident to his arrest should have been
suppressed. Thompson was entitled to a hearing on his suppression motion only if his
moving papers demonstrated a “colorable claim” for relief. United States v. Voigt, 89
F.3d 1050, 1067 (3d Cir. 1996); United States v. Brink, 39 F.3d 419, 424 (3d Cir. 1994).
“In order to be ‘colorable,’ a defendant’s motion must consist of more than mere
bald-faced allegations of misconduct.” Id. (citing United States v. Sophie, 900 F.2d 1064,
1071 (7th Cir. 1990) (denial of hearing affirmed when defendant’s own submissions
refuted his claim), cert. denied, 498 U.S. 843 (1990)).
The motion papers established that Thompson was involved in a major motor
vehicle collision and fled the scene of the accident. New Jersey law makes it a crime
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equivalent to that of a felony to leave the scene of an accident involving serious bodily
injury, N.J. Stat. Ann. 2C:12-1.1, and leaving the scene of an accident is the equivalent of
a misdemeanor. N.J. Stat. Ann. 39:4-129. A person may be arrested without a warrant
for committing either a felony or a misdemeanor in a police officer’s presence in a public
place. Maryland v. Pringle, 540 U.S. 366, 370 (2003). Sergeant Ladaudio clearly had
probable cause to arrest Thompson for the felony of leaving the scene of an accident
involving serious bodily injury, as well as the misdemeanor offense of leaving the scene
of an accident. See United States v. Burton, 288 F.3d 91, 98 (3d Cir. 2002) (facts “were
sufficient to warrant a prudent man in believing that the [defendant] had committed or
was committing an offense”) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964)). Therefore,
the search of Thompson’s person incident to arrest was proper.
As to the seizure of the evidence from the damaged minivan, Thompson forfeited
any privacy interest in the vehicle when he fled the scene. See United States v. Allen,
235 F.3d 482, 489 (10th Cir. 2000) (“Mere presence is not sufficient to show a legitimate
possessory interest or lawful control over a vehicle – particularly when the individual
flees the scene after being stopped by law enforcement officers.”) (emphasis added).
Accordingly, because it is clear that the arrest and search did not infringe Thompson’s
Fourth Amendment rights, the District Court did not abuse its discretion in denying the
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suppression motion without an evidentiary hearing.2
B. Sixth Amendment Right to Cross-Examination
Thompson claims that the District Court erred by granting the government’s
motion in limine precluding evidence, lines of questioning, or argument concerning
alleged use of force and police brutality during the arrest. We review the District Court’s
decision to admit or exclude evidence, as well as to limit cross-examination, for abuse of
discretion. United States v. Ellis, 156 F.3d 493, 498 (3d Cir. 1998), United States v.
Mathis, 264 F.3d 321, 326-27 (3d Cir. 2001). While such discretion is not unlimited,
“[o]ur scope of review is so restricted because ‘[t]he admission or exclusion of evidence
is a matter particularly suited to the broad discretion of the trial judge.’” United States v.
Casoni, 950 F.2d 893, 902 (3d Cir. 1991) (citation omitted).
The main purpose of the Confrontation Clause is to permit the cross-examination
of a witness. Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986) (citing Davis v. Alaska,
415 U.S. 308, 315 (1974)). The Confrontation Clause, however, does not guarantee
cross-examination in whatever manner the defendant desires. See United States v. Lore,
430 U.S. 190, 208 (3d Cir. 2005) (citing Delaware v. Fensterer, 474 U.S. 15, 20 (1985)
2
In any event, any error in denying the suppression motion was harmless as the
evidence at trial established probable cause to arrest Thompson and Graham for the
armed bank robbery and search the minivan. See Gov’t of Virgin Islands v. Williams,
739 F.2d 936, 939 (3d Cir. 1984) (in considering the denial of a motion to suppress “this
court may look at the entire record,” and is not limited to the information presented in the
suppression motion).
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(per curiam)). Instead, “a district court retains ‘wide latitude insofar as the Confrontation
Clause is concerned to impose reasonable limits on such cross-examination based on
concerns about, among other things, harassment, prejudice, confusion of the issues, the
witness’ safety, or interrogation that is repetitive or only marginally relevant.’” United
States v. Mussare, 405 F.3d 161, 169 (3d Cir. 2005) (quoting Van Arsdall, 475 U.S. at
678-79).
Thompson has not shown how evidence of the amount of force used to apprehend
him and place him in custody is relevant to the question of whether he was guilty of the
charges of armed bank robbery and using and/or carrying a firearm during a crime of
violence. Nor has he articulated how evidence of alleged police brutality when he was
finally apprehended would be probative of bias on the part of the law enforcement
officers who testified at trial. Stated otherwise, Thompson has failed to demonstrate that
the alleged excessive force in arresting him had a “tendency to make the existence of any
fact that is of consequence to the determination” of the armed robbery trial “more or less
probable . . . .” Fed. R. Evid. 401. Accordingly, the District Court did not abuse its
discretion by precluding Thompson’s counsel from exploring alleged police brutality.
C. Brady Violations
Thompson asserts that the government violated Brady by failing to produce
Sergeant Ladaudio’s police report, as well as alleged use of force documents he
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authored.3 (App’t’s Br. 27-9.) Thompson claims this information was material because it
would have rebutted the consciousness of guilt inference arising from his fleeing the
scene of the accident by showing that he was afraid of the pursuing officers and would
have shown bias on the part of the officers who may have used excessive force in
bringing about his arrest. (Id. at 31-3.) “Because a Brady claim presents questions of law
as well as questions of fact, we will conduct a de novo review of the district court’s
conclusions of law as well as a ‘clearly erroneous’ review of any findings of fact where
appropriate.” United States v. Perdomo, 929 F.2d 967, 969 (3d Cir. 1991) (citation
omitted).
“To establish a Brady violation, it must be shown that (1) evidence was
suppressed; (2) the evidence was favorable to the defense; and (3) the evidence was
material to guilt or punishment.” United States v. Risha, 445 F.3d 298, 303 (3d Cir.
2006). There was no Brady violation in this case because the Ladaudio report was not
favorable to the defense.
The withheld police report recounts Ladaudio observing a vehicle driven by the
suspected bank robbers. A pursuit ensued, with Ladaudio trailing both the minivan and
the unmarked police car. The pursuit ended with the bank robbers’ vehicle crashing.
Sergeant Ladaudio proceeded to witness the driver, Thompson, exit the vehicle and flee.
3
Sergeant Ladaudio’s report of the incident has been produced as part of the
record on appeal and is at SA567. There is no indication that Ladaudio prepared any
other report.
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Ladaudio drove his unmarked vehicle closer to the area where Thompson was running – a
Wal-Mart parking lot. Sergeant Ladaudio exited his vehicle and pursued Thompson on
foot; Thompson ignored his orders to stop running; Ladaudio restrained Thompson; and
Detective Ng arrived to assist with handcuffing Thompson.
Contrary to Thompson’s bald assertion, the report would not have afforded any
basis for dispelling the inference of guilt from flight. The report confirms the testimony
that Thompson attempted to flee when the vehicle in which Ng was riding activated its
emergency lights and siren. Nor would the report have suggested bias on the part of the
officers. In short, the withheld report did not offer any possible impeachment evidence,
as Sergeant Ladaudio did not testify, and the report corroborated Detective Ng’s
testimony. Detective Ng testified that Ladaudio was in an unmarked police vehicle, and
that Ladaudio followed Ng’s car in pursuit of Thompson. He additionally testified that
Ladaudio apprehended Thompson, and Ng assisted in the arrest. Ladaudio’s report stated
that he “yielded” to Detective Ng’s vehicle, and that Detective Ng “assisted with
handcuffing.” Therefore, nothing in the Ladaudio report is exculpatory. Accordingly,
Thompson has failed to demonstrate a Brady violation.
D. Lay Witness Opinion Testimony
Thompson claims that the District Court erred by permitting a lay witness, Edward
Uehlinger, to deliver opinion testimony concerning the GPS tracking device, which led to
his apprehension. In particular, he challenges the admission of two exhibits that Mr.
10
Uehlinger authenticated: Government Exhibit 16, a spreadsheet listing the tracking
information for the GPS device during the incident in question, (SA482-92); and
Government Exhibit 18, a graphical depiction of the data produced by the GPS device
during the incident. (SA493.) Mr. Thompson disputes the admissibility of the exhibits
and related testimony because Mr. Uehlinger had no scientific background concerning the
functionality of the GPS device. “We review the District Court’s evidentiary rulings,
including whether opinions are admissible under Rule 701, for abuse of discretion.”
Donlin v. Phillips Lighting N. America, 581 F.3d 73, 80 (3d Cir. 2009).
Mr. Uehlinger, a thirteen year Senior Account Executive with 3SI Security
Systems,4 was called to testify as a lay witness. He testified that he was trained in,
experienced in, and had verified the functioning of GPS devices. Uehlinger was
responsible for customer service and sales for all of his clients, primarily banks and credit
unions, in New York, New Jersey, and New England. His company sold the GPS device
to the Bank of America branch office that Thompson robbed. Mr. Uehlinger explained
that an Electronic Satellite Pursuit (“ESP”) device automatically activates when it is lifted
from the bank teller’s drawer, thus triggering GPS tracking. A GPS system, when
activated, automatically relays the latitude, longitude, speed, and directional coordinates
to the appropriate local police departments. This information is recorded on a spreadsheet
4
3SI Security Systems specializes in selling devices that aid the recovery of stolen
assets.
11
titled, “ESP Tracker Data,” and was admitted at trial as Government Exhibit 16. Mr.
Uehlinger further testified that when the device is activated, it creates a “bread crumb
trail,” meaning that a dot is created on a map to depict the device’s movements. Each dot
has a latitude, longitude, direction, and speed, and each dot is time stamped. This
graphical depiction of the ESP tracking data was admitted as Government Exhibit 18. In
short, Mr. Uehlinger explained how the responding police officers were able to track and
apprehend Thompson using the GPS system, and that the data generated by the device
was recorded on Government Exhibits 16 and 18.
The District Court did not err in permitting Uehlinger to testify as a lay witness.
Lay and expert testimony are distinguishable in that “lay testimony results from a process
of reasoning familiar in everyday life, while expert testimony results from a process of
reasoning which can be mastered only by specialists in the field.” Fed. R. Evid. 701
Advisory Committee’s Notes (2000); see also Donlin, 581 F.3d at 81 (“[L]ay testimony
must ‘result[ ] from a process of reasoning familiar in everyday life,’ as opposed to a
process ‘which can be mastered only by specialists in the field.”) (quoting Notes to 2000
Amendments). Uehlinger’s testimony pertaining to the GPS data involved “lay witness
[testimony based on] particularized knowledge by virtue of h[is] experience, [and as such
it was admissible] – even if the subject matter [was] specialized or technical – because the
testimony [wa]s based upon [Uehlinger]’s personal knowledge rather than on specialized
knowledge within the scope of Rule 702.” Donlin, 581 F.3d at 81 (3d Cir. 2009) (citing
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Notes to 2000 Amendments). In this regard, Mr. Uehlinger testified that he does
demonstrations for prospective clients by conducting live demonstrations of the reliability
of the GPS devices, thus affording him a basis for attesting to the reliability of the system.
See Eichorn v. AT&T Corp., 484 F.3d 644, 649 (3d Cir. 2007) (“‘Rule 701 requires that a
lay opinion witness have a reasonable basis grounded either in experience or specialized
knowledge for arriving at the opinion that he or she expresses. . . .’”)(original emphasis).
Moreover, Uehlinger’s testimony was “rationally based on the perception of the witness,”
as mandated by Federal Rule of Evidence 701(a).5 Fed. R. Evid. 701(a). “The expression
of opinions or inferences by a lay witness is permitted because of the qualification in Rule
701(a) that the factual predicate of the testimony be within the witness's perception.”
Teen-Ed. Inc. v. Kimball Int’l, Inc., 620 F.2d 399, 403 (3d Cir. 1980). Because the
opinions and inferences expressed by Uehlinger were based upon his perceptions, we
conclude that the District Court did not abuse its discretion in allowing Uehlinger to
testify concerning the operation of the GPS device.
III.
For the foregoing reasons, we will affirm the decision of the District Court.
5
Additionally, as the District Court acknowledged, the GPS’ “reliability is self-
evident in this case[,]” (A237), and “it seems to be self-evident that the GPS device, A,
worked and, B, led the police officers to the point of arrest.” (A238.)
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