United States v. Maurice Davis , 664 F. App'x 150 ( 2016 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 15-3670
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UNITED STATES OF AMERICA
v.
MAURICE LEBRON DAVIS,
a/k/a Maurice Pringle
Maurice Lebron Davis,
Appellant
__________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 1-13-cr-00028-001)
District Judge: Honorable John E. Jones, III
Submitted Under Third Circuit LAR 34.1(a)
September 7, 2016
BEFORE: JORDAN, VANASKIE, and NYGAARD, Circuit Judges
(Filed: October 18, 2016)
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OPINION *
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
NYGAARD, Circuit Judge.
Maurice Lebron Davis appeals the judgment of conviction entered on the jury’s
verdict of guilty on four counts of Hobbs Act robbery and four counts of Hobbs Act
attempted robbery. 18 U.S.C. § 1951. The District Court sentenced Davis to 235
months’ imprisonment on each count, to be served concurrently. He asserts now that
there was insufficient evidence to support the verdict. We will affirm.
This opinion does not have any precedential value. Therefore, our discussion of
the case is limited to covering only what is necessary to explain our decision to the
parties. In reviewing challenges to the sufficiency of the evidence supporting a
conviction, we apply a “particularly deferential standard of review.” United States v.
Powell, 693 F.3d 398, 401 n. 6 (3d Cir. 2012)(quotation marks omitted). We look at the
entire record, examining both direct and circumstantial evidence, to ascertain the
sufficiency of the evidence.
Police arrested Davis after an early-morning incident at an Arby’s restaurant. An
Arby’s employee reported that, around 7 A.M., on February 24, 2012 she discovered a
smashed window, next to a cash register at the drive-through area of the restaurant, and a
rock laying nearby that she believed was used to break the window. She said that the
napkin dispenser inside the drive-through area had been “jumbled.” The employee also
noted seeing a black SUV parked nearby in an unusual location. Around the same time,
another person called to report a suspicious man running by his office building, which
was near Arby’s, with his face covered by a cloth. He observed the man dumping
napkins (later identified as Arby’s napkins, one smeared with blood matching Davis’
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DNA) into a dumpster. The man was looking in the direction of Arby’s. He saw the man
taking off some clothes and placing them near the dumpster. The witness photographed
the man. Police apprehended Davis a short time later. The witness had sight of him
throughout this entire time. They found a shard of glass in Davis’ shoe consistent with
the broken glass at the Arby’s. The clothes recovered near the dumpster were ripped and
had blood on them. Police later determined that the blood matched Davis’ DNA. Upon
questioning, Davis offered police only vague, uncorroborated reasons for being in the
area. When told about the incident at Arby’s, Davis said “they won't be able to describe
me.” App. 184. Police arrested Davis soon thereafter on the crime charged at Count Ten.
Following Davis’s arrest and upon further investigation, police obtained a warrant
to search the residence of a friend of Davis, Sharef Flounoy. Police recovered an
encrypted note from Davis, written from prison and addressed to Flounoy’s residence,
that they later decrypted. 1 It said, in part, “I need for the Arby's to get its window broke
again. . . .The perfect time is 4:20 in the morning.” App. 280. They also found a cell
phone with a phone number that Davis’ parents had earlier told police belonged to Davis,
and a cell phone police linked to Flounoy. Finally, they learned that Flounoy’s girlfriend
had a black SUV, similar to one described by the Arby’s employee.
Aware of a string of recent fast-food restaurant robberies and attempted robberies,
police broadened their investigation. At trial, the Government proffered cell-tower data
placing the phone number associated with Davis at or near a number of crime scenes
1
Investigators unencrypted the letter using a common cipher found on the internet.
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around the times that the crimes were committed. 2 Specifically, the Government argued
that this evidence placed Davis at the scenes of the following crimes: the robbery at the
Mechanicsburg Chik-Fil-A on December 23, 2011 (Count One); the attempted robbery at
the Camp Hill, Simpson Ferry Road Wendy’s on December 23, 2011 (Count Two); the
robbery at the Harrisburg, Cameron Street Burger King on January 6, 2012 (Count
Seven); the attempted robbery at the Carlisle Wendy’s on January 6, 2012 (Count Eight);
and the attempted robbery at the Carlisle McDonalds on February 24, 2012 (Count Nine).
For the crimes charged in Counts One, Two, Seven, and Nine, cell tower data
additionally showed calls being made from the number associated with Davis to the
number associated with Flounoy at times close to the robberies. Regarding the crime
charged in Count Seven, there was also a call made from the phone number associated
with Davis to Amtrak shortly after the robbery. It was later determined that Davis and
Flounoy had tickets for travel on Amtrak that same day.
The evidence linking Davis to the scene of the crime was not uniform as to each
count charged. Nonetheless, for the counts in which cell-tower data was more
ambiguous, the Government proffered witness descriptions that were consistent with
those offered at the scenes where cell-tower data was more accurate. For instance, the
robbery at the Camp Hill, 21st Street Wendy’s on December 31, 2011 (Count Three), and
the attempted robbery at the Harrisburg, Paxton Street Burger King on December 31,
2011 (Count Four) showed only that the cell phone associated with Davis’ number was
2
Cell-tower data is now commonly accepted in federal courts as evidence of a
defendant’s location. See United States v. Jones, 918 F. Supp. 2d 1, (D.D.C. 2013).
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active on the days, and in the general locale, of the crimes. Yet, for both crimes, the
Government proffered witnesses who had close contact with the robber and identified the
perpetrator as a male who wore a bandana or mask over his face. The witness in Count
Four further identified the male as African-American. This description aligned with
witnesses at other crime scenes who viewed the robber at close range (Counts One,
Seven, and Nine) where cell tower evidence did place the number associated with Davis
near the crime scene. 3 Specifically, in Counts One and Seven, the witness identified the
robber as a black or African-American male, wearing a bandana to cover his face. In
Count Nine, the witness could not identify the person’s race, but did say that the man
disguised his face with a white bag under a hoodie. For other crimes charged (Counts
Two and Eight), eye-witnesses only saw a figure from a distance. Nonetheless, cell-
tower data placed the phone number associated with Davis near the scene, on the date,
and around the time of the robbery attempts. 4
Moreover, the Government proffered modus operandi evidence. All of the crimes
for which Davis was charged centered on fast-food restaurants within relative close
proximity to one another, over a span of approximately two months. All of them
involved early-morning efforts to either smash a window (either at the drive-through area
or the door), or to use threatening conduct directed at an employee to gain entry to the
3
The witness proffered regarding the crime charged in Count Nine saw only a white
mask over the robber’s face and was uncertain of his race.
4
This is distinguished from Counts Five and Six, in which the jury found Davis not guilty.
In both of these instances, neither location data or witness descriptions could link Davis
to the crime scenes.
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restaurant. Moreover, as noted above, in every case in which the perpetrator was viewed
from close range, the perpetrator was described as a male, acting alone, wearing a cloth
or mask to disguise his face. In spite of Davis’s contentions to the contrary, we conclude
that it was proper for the jury to consider modus operandi evidence in its deliberations,
which was only a portion of the case presented by the Government.
Finally, additional evidence resulted from the investigation. As a result of
investigators’ search of the Flounoy’s residence they found, on the phone they associated
with Davis, a photo of a stack of $1 bills on a drop-leaf table that looked like the table in
Flounoy’s residence. The photo was date-stamped January 1, 2012, only one day after
the robbery charged in Count Three. They also found on the phone a photo of Davis and
a woman identified as his girlfriend. Moreover, when questioned, Davis maintained that
he was in New York City on the dates of some of the robberies. Investigators determined
that the times of day that could be verified for his presence there did not rule out the
possibility that he was also in the area of the robberies on those same days. He did not
have alibi evidence relating to any of the crimes.
Davis contends, amidst his general insufficiency of evidence argument, that the
evidence presented by the Government does not establish specific intent. We disagree.
“Except in unusual cases, intent can be proven only through circumstantial evidence.”
United States v. Jannotti, 673 F.2d 578, 603 (3d Cir. 1982). We are convinced that, as to
Davis’ general sufficiency challenge and to the particular question on intent he raises, the
Government provided sufficient evidence to ground the jury’s verdict. See United States
v. Iglesias, 535 F.3d 150, 155-56 (3d Cir. 2008).
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The Hobbs Act is intended ‘“to punish interference with interstate commerce by
extortion, robbery, or physical violence.’” Powell, 693 F.3d at 402 (quoting United
States v. Culbert, 435 U.S. 371, 373 (1978)). Davis’ appeal attempts to deconstruct the
Government’s case by isolating individual pieces of the record to argue the inadequacy of
each to ground his conviction. However, taken as a whole, there is considerable evidence
relating to the crime at the Arby’s charged in Count Ten: the physical evidence gathered
at the time that Davis was arrested and the DNA match linking him to the ripped clothes,
the testimony of the store employee, evidence gathered at the Arby’s and the description
of the scene by the employee, evidence gathered during the search of Flounoy’s
residence, the eye-witness description of both Davis’ actions and appearance, and the
modus operandi evidence linking all of the crimes charged. This body of evidence amply
grounded the jury’s decision to convict Davis of the crime charged in Count Ten.
The same analysis applies to Davis’ argument regarding the other crimes for
which he was convicted. The record taken as a whole adequately grounded the jury’s
verdict as to each count. The Government presented data from cell-towers providing the
location of a mobile device with a phone number belonging to Davis and evidence of
contemporaneous phone calls made. It also presented evidence gathered at the Flounoy
residence (including cell phones and a photo), witness statements describing the robber
and his actions, modus operandi evidence linking all of the crimes charged. All of this
was more than sufficient to ground the jury’s decision to convict Davis of the crimes
charged in Counts One, Two, Three, Four, Seven, Eight and Nine.
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For all of these reasons, we will affirm the District Court’s judgment of
conviction.
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