United States v. Haywood

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

4-8-2004

USA v. Haywood

Precedential or Non-Precedential: Precedential

Docket No. 01-4086

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PRECEDENTIAL Attorneys for Appellee

UNITED STATES COURT OF

APPEALS OPINION

FOR THE THIRD CIRCUIT

McKEE, Circuit Judge.

No. 01-4086

Ira H aywood appeals his

UNITED STATES OF AMERICA convictions for robbery under Virgin

Islands law and for several federal charges

v. arising out of that robbery. For the reasons

that follow, we will affirm his robbery

IRA HAYWOOD, conviction and his convictions for the

federal crimes of interference with

Appellant commerce by robbery and possession of a

firearm during a crime of violence.

Appeal from the United States District However, we will reverse his conviction

Court for possession of a firearm with an

for the Virgin Islands obliterated serial number and remand for a

(Crim. No. 00-cr-0029-2) new trial. We will also reverse his

District Judge: Hon. Thomas K. Moore conviction for possession of a firearm

within 1000 feet of a school but remand

Argued: April 28, 2003 with a direction to enter a judgment of

acquittal on that charge.

Before: ROTH, McKee and COWEN,

Circuit Judges I. FACTS

(Filed: April 8, 2004) Viewed in the light most favorable

to the government, the trial evidence

STEPHEN A. BRUSCH, ESQ. (Argued) showed that on December 28, 1999, at

28-29 Norre Gade, 2nd Floor approximately 8:00 p.m., America’s Bar

P.O. Box 988 and Poolroom, located in St. Thomas,

St. Thomas, U.S.V.I. 00804 United States Virgin Islands, was robbed.

Attorney for Appellant The owner, America Santiago, and a

customer, Carmen Rodriquez, were in the

DAVID M. NISSMAN, ESQ. bar at the time. Santiago testified that two

United States Attorney masked men entered the bar carrying

NELSON L. JONES, ESQ. (Argued) firearms. Santiago described one firearm

Assistant United States Attorney as very big and one as smaller. She also

U.S. Courthouse & Federal Building described one robber as being “short and a

5500 Veterans Drive, Suite 260 little strong,” and the other as “tall, but a

Charlotte Amalie, St. Thomas, U.S.V.I. little darker.” She testified that the men

00802 demanded money and fled with

approximately $40 to $60 in bills and time of his initial call until he saw the

approximately $10 in coins.1 police approaching. He saw the green car

with the two men inside stop at a stop light

Rodriquez testified that she saw two before making a left turn and heading in an

masked men come into the bar and easterly direction. Charles conveyed this

demand money. The men entered with two information to the police and watched as

guns, a big one and a small one. She said the police chased the green car with the

she was scared and threw $15 at the two men inside. However, Charles was

masked robbers. unable to identify the two robbers in court.

Duke Charles, a cab driver who Virgin Islands Police Officer

lives next door, approximately fifty feet Alphonso Boyce testified that he and

from the bar, saw two men standing Officer Conrad Gilkes heard the radio

outside the bar at approximately 8:00 p.m. transmission regarding a robbery in

on the night of the robbery. One man progress and proceeded to the area.

pulled a small black gun from his waist, Boyce also heard the subsequent

and the two men then entered the bar. transmission regarding the direction of

Charles testified that the two men wore the green car. He then saw the car and

white T-shirts and were not wearing masks gave chase.

when he saw them enter the bar. He

immediately called the police on his cell The green car eventually crashed

phone, then ran upstairs to the roof of the into a pole in the area of the Enid Bea

building. He testified that from the roof, Public Library. Ira Haywood, the driver,

he heard voices saying, “This is a hold-up. and Kevin White, the passenger, were

Give me the money.” Charles also ordered out of the car. When Haywood

testified that he saw the men leave the bar got out, Boyce saw part of a gun fall from

and walk up the street towards the Tower Haywood’s waist. A search of the car

Apartments. Shortly thereafter, Charles disclosed the bottom portion of the

observed a green car come down the street firearm, a shotgun, ammunition, a ski

carrying the same two men that he had mask, gloves, tools and numerous coins.

observed entering and leaving the bar. Sandra Koch, a Federal Bureau of

Charles was in constant contact with the Investigation hair and fiber expert, later

Virgin Islands Police Department from the matched hair fiber samples from Haywood

with hair fiber found in the ski mask

recovered from the car.

1

Santiago also testified that she sold

Virgin Islands Police Detective

liquor, Heineken beer and Coors Light

David Monoson found a shotgun

beer at the bar. As we will discuss below,

between the seats of the car Haywood

this is important for purposes of federal

was driving. A firearm frame and

jurisdiction.

2

magazine were also found under the possession of a firearm with an obliterated

driver’s seat. Monoson testified that $15 serial number, in violation of 18 U.S.C. §§

was found on the dash board of the car, 922(k) and 924(a)(1)(B); Count Six

$27 was removed from blue pants on the charged White with possession of a

pavement outside the car and coins were shotgun during (and in relation to) a crime

found on the driver’s side of the car. of violence, in violation of 14 V.I.C. §

Monoson further testified that the serial 2253(a); Count Seven charged both with

numbers from the shotgun and handgun possession of a firearm within a thousand

had been obliterated, and that the feet of a school, in violation of 18 U.S.C.

handgun had been manufactured in §§ 922(q)(2)(A) and 2. Counts Eight,

California and the shotgun had been Nine and Ten charged Haywood with

manufactured in Connecticut. separate offenses occurring before the

robbery of the bar. Those counts were

Virgin Islands Police Detective severed and subsequently dismissed

Warrington Tyson later measured the without prejudice.

distance from America’s Bar to the Ulla

Muller Elementary School. That Virgin Islands Police Detective

distance was 421 feet, 4 inches. Tyson Darren Foy testified that the bar is a

testified that he took the measurement business established in the Virgin Islands

from the bar to the entrance gate of the selling liquor and beer as well as non

school. alcoholic beverages. He also testified

that the products sold at the bar,

On March 2, 2002, Haywood and specifically, Heineken beer and Miller

White were charged in a ten count beer, come from mainland United States.

superseding indictment with the following

violations: Count One charged both Haywood and White testified in

Haywood and White with interference their own defense, and both denied

with commerce, in violation of 18 U.S.C. participating in the robbery. Haywood

§§ 1951 and 2; Count Two charged claimed that he did not stop the car he

Haywood with possession of a firearm was driving when chased by police

during the commission of a crime of because he had marijuana and was afraid

violence, in violation of 18 U.S.C. §§ that he would be arrested on drug

924(c)(1) and 2; Count Three charged charges.

White with possession of a short barreled

shotgun during (and in relation to) a crime The jury found Haywood and

of violence, in violation of 18 U.S.C. §§ White guilty as charged. Haywood was

924(c)(1) and 2; Count Four charged both sentenced to a total period of

with robbery in the first degree, in imprisonment of 125 months, and then

violation of 14 V.I.C. §§ 1862(2) and 11;

Count Five charged Haywood with

3

filed this appeal. 2 convictions, on Counts One, Two, Five

and Seven, must be reversed because there

II. DISCUSSION was insufficient evidence that he robbed

the bar. He begins by noting that neither

Haywood makes a number of Santiago nor Rodriquez could identify him

arguments in his appeal. Each is as one of the robbers. He then argues that

considered separately below. the only evidence connecting him to the

robbery was Charles’s testimony that the

A. Insufficient Evidence of Robbery.3 car carrying the robbers was the same car

Haywood argues that all of his that Charles told the police to follow, and

the police officers’ testimony that the car

2

they followed at the start of the chase was

White also filed an appeal. We the same car that crashed into the library.

affirmed his judgment of conviction and Accordingly, Haywood claims that the

sentence on June 14, 2002. only established facts are that the bar was

3 robbed and that he was driving a green car

“In reviewing a jury verdict for

that crashed into the library. He contends

sufficiency of the evidence, we must

that all of the other evidence was

consider the evidence in the light most

circumstantial and lacked a logical and

favorable to the government and affirm the

convincing connection to the established

judgment if there is substantial evidence

facts.

from which a rational trier of fact could

find guilt beyond a reasonable doubt.”

In support of his claim of

United States v. Brown, 3 F.3d 673, 680

insufficient evidence, Haywood notes

(3d Cir. 1993) (citation and internal

that Charles testified that he saw only

quotations omitted). “In determining

one small gun, which was removed from

whether evidence is sufficient, we will not

the waistband of one of the men right

weigh the evidence or determine the

before they entered the bar. Haywood

credibility of witnesses. . . . Appellate

claims that since Charles could see one

reversal on the grounds of insufficient

of the men enter the bar with a small gun,

evidence should be confined to those cases

it is inconceivable that he would not also

where the failure of the prosecutor is clear.

have seen the shotgun used by the other

The evidence need not be inconsistent with

man. Yet, Charles never testified about

every conclusion save that of guilt, so long

the other man carrying a shotgun.

as it establishes a case from which a jury

Moreover, Charles testified that both

could find the defendant guilty beyond a

men were unmasked before they entered

reasonable doubt. . . . A defendant

the bar, but Santiago and Rodriquez

challenging the sufficiency of the evidence

testified that the robbers were masked

bears a heavy burden.” United States v.

when they entered the bar. Further,

Casper, 956 F.2d 416, 421 (3d Cir. 1992)

while Charles testified that the robbers

(citations omitted).

4

wore white T-shirts, neither Santiago nor reasonably conclude beyond a reasonable

Rodriquez gave a description of the doubt that Haywood was the shorter of the

clothes the robbers were wearing. In two men and that the shorter man had the

addition, Officer Boyce testified that the smaller firearm.

change found at the scene of the arrest

was in quarters, nickels and dimes, while Charles called the police on his

Santiago testified that the $10 in change cell phone while he was still observing

she gave to the robbers was only in the two men he saw outside of the bar.

quarters. In addition, Boyce testified that He was still watching as they went into

the car that he followed was blue, but the bar with guns. He then ran up to the

Charles testified that the car he told the top of his building where he said he

police to follow was green. Finally, could see the entire area. He testified that

Haywood argues that Boyce testified that he heard someone say “Give me money.

the slide of a gun fell out of Haywood’s This is a holdup.” Charles watched the

waistband when Haywood got out of the men as they left the bar and made a left

car. However, Detective Monoson turn into some condominiums. He then

testified that he was told that the slide saw them coming down the street full

was thrown out of the car during the speed in a green car. They stopped at a

pursuit. In Haywood’s view, the lack of stoplight because there was another car

direct evidence linking him to the in front of them, and then turned left.

robbery together with the inconsistent Charles then saw the police car and told

circumstantial evidence demonstrates them that the robbers were making a left

that there was insufficient evidence to turn. He continued watching as the

sustain his conviction for robbery. police started chasing the car with the

Therefore, all convictions must be two robbers in it.

reversed. We disagree. There was more

than sufficient evidence to sustain Boyce’s testimony establishes that

Haywood’s robbery conviction. the car he stopped was the same one that

Charles saw. Boyce told the occupants to

The fact that neither Santiago nor get out of the car and Haywood, the driver,

Rodriguez could identify Haywood as one did as instructed. When he got out, the

of the robbers is unremarkable given that slide for the top of a gun dropped to the

both women testified that the men who ground from inside Haywood’s waistband.

robbed the bar were masked. As noted The car was searched and the bottom half

above, the evidence showed that two of the gun that went with the slide was

masked men, each carrying a firearm, recovered, as well as a ski mask, gloves

robbed the bar. One firearm was smaller and ammunition. Several coins had fallen

than the other. One man was short and from the car as well.

strong and the other was taller but a little

darker. Testimony allowed this jury to Lucy Krigger, the police dispatcher,

5

testified that Charles gave the police the obliterated, or altered and

license plate number of the car the robbers has, at any time, been

were driving. As noted, Koch, the FBI shipped or transported in

witness, testified that a hair sample taken interstate or foreign

from Haywood matched the hair found in commerce.

the ski mask.4

The district court instructed the jury on the

Given this testimony as well as the § 922(k) charge as follows:

testimony about the shot gun that was First, that on the same day,

recovered, it is disingenuous to claim that December 28 of last year,

the evidence was insufficient to convict here in St. Thomas, Ira

Haywood of robbing the bar. Haywood knowingly

B. Possession of a Firearm with an possessed a firearm, that is,

Obliterated Serial Number. a .380 Davis Industries

Haywood was also convicted of pistol, which firearm at

Count Five, possession of a firearm with some point in time had been

an obliterated serial number. Title 18 transported in interstate

U.S.C. § 922(k) provides: commerce, and from which

It shall be unlawful for any the manufacturer’s serial

person knowingly to number had been removed

transport, ship, or receive, and obliterated.

in interstate or foreign

commerce, any firearm App. 506-07. Haywood argues that the

which has had the district court’s instruction was erroneous

importer's or because it did not require the government

manufacturer's serial to prove beyond a reasonable doubt that

number removed, Haywood knew that the serial number on

obliterated, or altered or to the pistol had been obliterated when he

possess or receive any possessed it.

firearm which has had the Title 18 U.S.C. § 924(a)(1)(B)

importer's or governs the penalty provisions for

manufacturer's serial violations of § 922. “In 1986 Congress

number removed, enacted the Firearms Owners’ Protection

Act, which modified the penalty provisions

of 18 U.S.C. § 924. . . . Where the

4 preexisting statute had provided criminal

The jury could certainly conclude that,

penalties for ‘[w]hoever violates any

given the climate and the amount of snow

provision of this chapter,’ . . . the amended

that falls in St. Thomas, Haywood did not

version, insofar as here relevant, imposes

have a ski mask because he was on his

criminal penalties on ‘whoever knowingly

way to or from the slopes.

6

violates subsection . . . (k) . . . of section that affects substantial rights. If all three

922.’” United States v. Haynes, 16 F.3d conditions are met, an appellate court may

29, 33-4 (2d Cir. 1994) (citations omitted) then exercise its discretion to notice a

(emphasis in original). The courts of forfeited error, but only if (4) the error

appeals that have considered the issue after seriously affects the fairness, integrity, or

this amendment became effective have all public reputation of judicial proceedings.”

held that a § 922(k) conviction now Johnson v. United States, 520 U.S. 461,

requires not only knowing possession of 467 (1997) (citations, internal quotations

the firearm, but also knowledge that the and brackets omitted). In the case of an

serial number on the firearm had been erroneous jury instruction, “the relevant

obliterated. See United States v. inquiry . . . is whether, in light of the

Abernathy, 83 F.3d 17, 19 n.1 (1st Cir. evidence presented at trial, the failure to

1996); United States v. Fennell, 53 F.3d instruct had a prejudicial impact on the

1296, 1300-01 (D.C. Cir. 1995); United jury’s deliberations, so that it produced a

States v. Haynes, 16 F.3d at 34; United miscarriage of justice.” United States v.

States v. Hooker, 997 F.2d 67, 72-74 (5th Xavier, 2 F.3d 1281, 1287 (3d Cir. 1993)

Cir. 1993). Thus, pursuant to the (citations and internal quotations omitted).

amendment, knowledge that the serial “In other words, did the error seriously

number is obliterated at the time of affect the fairness, integrity or public

possession is an element of the offense of reputation of judicial proceedings?” Id.

a § 922(k) violation. We therefore hold (citation, internal quotations and brackets

that the time of the weapon’s possession is omitted). Although we have not adopted

an element of a violation of § 922(K). a per se rule, we have held that “the

Accordingly, the district court’s instruction omission of an essential element of an

was erroneous. offense [in a jury instruction] ordinarily

constitutes plain error.” Id. (citation

However, Haywood’s trial counsel omitted) (emphasis in original). “[This] is

did not object to the instruction, and consistent with the Supreme Court’s

therefore Haywood must establish plain instruction that due process requires ‘proof

error.5 United States v. Olano, 507 U.S. beyond a reasonable doubt of every fact

725, 734-735 (1993). “Under [the plain necessary to constitute the crime with

error] test, before an appellate court can which [the defendant] is charged.’” Id.

correct an error not raised at trial, there (quoting In re Winship, 397 U.S. 358, 364

must be (1) error, (2) that is plain, and (3) (1970)).

Here, the district court’s failure to

5 instruct the jury that knowledge of the

Had Haywood objected to the

obliterated serial number is an element of

instruction, this issue would be subjected

the crime undoubtedly had an effect on the

to a harmless error analysis. Neder v.

jury’s deliberations. “[T]he jury could not

United States, 527 U.S. 1, 7-15 (1999).

7

have been expected to make a finding charged.” In re Winship, 397 U.S. 358,

beyond a reasonable doubt as to 364 (1970). Speculation about what the

[Haywood’s knowledge of the obliterated jury could have done if properly

serial number] in the absence of an instructed falls woefully short of that

instruction to do so.” Xavier, 2 F.3d at burden.

1287. Therefore, the inquiry becomes Accordingly, we find that the

whether the failure to instruct was district court’s failure to instruct the jury

prejudicial, i.e., did the failure to instruct on the element of knowledge of the

on knowledge affect Haywood’s due obliterated serial number amounted to

process rights in a manner that “‘seriously plain error. Therefore, we will reverse the

affect[ed] the fairness, integrity or public conviction on Count Five and remand for

reputation of judicial proceedings.’” Id. a new trial.

(quoting Olano, 507 U.S. at 736.

C. Possession of a Firearm in a School

We believe it did. The Zone.

government argues that because Haywood was also convicted on

Haywood possessed the pistol, hid it on Count Seven – possession of a firearm

his person and used it in a robbery, the within 1000 feet of a school zone. That

jury could reasonably infer that Haywood statute provides:

would have examined the pistol at some

point before the robbery to see if it It shall be unlawful for any

worked. In addition, the government individual knowingly to

notes that at some point after the robbery, possess a firearm that has

Haywood disassembled the pistol. moved in or that otherwise

Therefore, given these considerations, affects interstate or foreign

the jury could have reasonably inferred commerce at a place that the

that Haywood discovered that the pistol’s individual knows, or has

serial number had been obliterated. That reasonable cause to believe,

is true. The jury could have found is a school zone.

beyond a reasonable doubt that Haywood

knew the gun had an obliterated serial 18 U.S.C. § 922(q)(2)(A). A “school

number had it been instructed of the need means a school which provides elementary

to do so under § 922(k). However, no or secondary education, as determined

such instruction was given and the under State law.” 18 U.S. C. § 921(a)(26).

government’s argument about the jurors’ “[S]chool zone” is defined to mean: “in,

thought process therefore rests upon pure or on the grounds of, a public, parochial or

speculation. Haywood has a due process private school” or “within a distance of

right to “proof beyond a reasonable 1,000 feet from the grounds of a public,

doubt of every fact necessary to parochial or private school.” 18 U.S.C. §

constitute the crime with which [he] is 921(a)(25)(A), (B).

8

Haywood argues that th e measurements were taken,

government failed to prove that he knew or the wheel that is attached,

had reason to believe that he possessed a affixed to the stick, there’s a

firearm in a school zone as required under little box in the top, and as

the statute. We agree. you push the wheel it rolls

As noted earlier, Detective Tyson the numbers around. So it

testified that he measured the distance gives you, as the wheel is

from America’s Bar and Poolroom to the rolling, it measures the

Ulla Muller Elementary School to be 421 distance as it goes from one

feet, 4 inches. Tyson also testified that the point to the other.

measurement was taken from the bar to the

school’s entrance gate. However, the Q: Okay. So, to take the

location of the bar in relation to the school measurement, did you walk

is not clear from the evidence. There is around, from America’s Bar

nothing to show whether they share the around the corner all the

same frontage or are around the corner way round to Ulla Muller

from each other or whether all approaches School?

to the “school zone” are clearly marked.

Therefore, the evidence did not establish A: It was measured from the

whether Haywood necessarily would have building into the entrance of

seen the school on the way to or from the the school, just within the

bar. Tyson testified on cross-examination gates.

as follows:

Q: The device you used to THE COURT: Is that line

measure the distance to the of sight? Can you see

school, is that a line of sight straight?

device measurement?

THE WITNESS: Yes, you

A: No. The measurement, I can. You can.

explained it already,6 the

BY [Defense Counsel]:

6 Q: So you went in a straight

On direct examination, Officer Tyson

line. Was that on a road or

testified that he used measuring equipment

did you have to go through

known as a “Monson Company, Model

bush?

1212,” and said “[i]t’s like a long piece of

stick with a wheel attached to the end that

A: That would be on the

the traffic officers use when they’re taking

road.

measurements in traffic accidents.” App.

at 303-304.

9

App. at 304-05 (emphasis added). Q: You live in Tutu, but you

know where America’s Bar

However, the government did not is, you said?

produce any evidence of any school zone

signs or similar identification that would A: Yes, sir. St. Thomas is

support the inference that Haywood should very small.

have known that a school was within 1000

feet of the bar. Nor did the government Q: And you know how to

produce any evidence that Haywood had to get to America’s Bar?

pass by the school to get to or from the

bar. A: Yes, sir.

Indeed, the only evidence offered Q: And you know how to

by the government in its attempt to prove get from America’s Bar?

that Haywood should have known that the

school was within 1000 feet of the bar is A: Yes, sir.

the following excerpt from his cross-

examination testimony: Q: You know where the

Q: But you know where Towers are?

America’s Bar is, right?

A: Yes, sir.

A: Yes, Sir.

Q: You know how to get

Q: You know where it is? there?

A: Where it is? A: Yes, sir.

Q: Yeah. App. at 360-61. Based on this cross-

examination testimony, the government

A: It’s by, across the street contends that the “jury could have drawn

from Nisky Center. It have the reasonable inference that, since

a big sign saying America’s [Haywood] knew the surrounding area of

Bar. America’s Bar he knew or should have

known the Ulla Muller Elementary

Q: And you know it well, School was within 1000 feet of the bar.”

right? Government’s Br. at 26. However, we

think it shows the opposite. Haywood

A: No. I don’t live down on testified that he did not know the area

that side. I live in Tutu. well because he lived in a different part

of St. Thomas, and the trial testimony

10

can not be fairly interpreted as physical violence to any

establishing that he knew the area well; person or property in

only that he knew how to get there. furtherance of a plan or

Consequently, only rank conjecture purpose to do anything in

supports a conclusion that Haywood violation of this section

knew or should have known that the bar shall be fined under this title

was within 1000 feet of the school. This or imprisoned not more than

is particularly true because the twenty years, or both.

government never even tried to establish

whether all approaches to the bar 18 U.S.C. § 1951. To sustain a conviction

necessarily pass the school or whether for interference with commerce by robbery

the area is marked as a “school zone.” under § 1951, the government must prove

the element of interference with interstate

In truth, the only evidence that the or foreign commerce by robbery. See

government produced to support this Stirone v. United States, 361 U.S. 212, 218

conviction is that the school is, in fact, (1960). “The charge that interstate

within 500 feet of the bar. However, that commerce is affected is critical since the

is not sufficiently conclusive to enable a Federal Government’s jurisdiction of this

reasonable juror to draw the inference that crime rests only on that interference.” Id.

Haywood knew or should have known of However, “[i]f the defendants’ conduct

that proximity. Accordingly, there is produces any interference with or effect

insufficient evidence to support the upon interstate commerce, whether slight,

conviction on Count Seven. Therefore, we subtle or even potential, it is sufficient to

will vacate the conviction and remand with uphold a prosecution under [§ 1951].”

directions to enter a judgment of acquittal Jund v. Town of Hempstead, 941 F.2d

on that Count. 1271, 1285 (2d Cir. 1991). Moreover, “[a]

jury may infer that interstate commerce

D. Interference with Commerce by was affected to some minimal degree from

Robbery. a showing that the business assets were

depleted.” United States v. Zeigler, 19

18 U.S.C. § 1951 (Count One) F.3d 486, 493 (10th Cir. 1994).

provides:

Whoever in any way or The district court’s jury

degree obstructs, delays, or instruction on the interference with

affects commerce or the commerce by robbery charge provided

movement of any article or that

commodity in commerce, by if the government proves

robbery or extortion or beyond a reasonable doubt

attempts or conspires so to that this business purchased

do, or commits or threatens goods or services that came

11

from outside St. Heineken and Miller beer sold at the bar.

T h o m a s , Virgin Therefore, the jury did not know if Foy’s

Islands, and that, testimony about the Heineken and Miller

therefore, all or part beer was based on information Foy

o f t h e p e rsonal received from Santiago, the bar’s owner,

property obtained or if Foy had himself been to the bar at an

from this business, earlier time and knew that the products

because of the came from the mainland, or if Foy just

a l l eg e d r o b b e r y , assumed that the products came from the

came from outside mainland. Haywood contends that, at a

St. Thomas, Virgin minimum, there must be some independent

Islands, then you are evidence, such as a purchasing invoice or

instructed that you the testimony of Santiago as to where she

may find that the purchased the Heineken and Miller beer in

defendants obtained, order to show interference with interstate

delayed or affected commerce.

commerce as this

term is used in these We disagree. In United States v.

instructions. Lake, 150 F.3d 269 (3d Cir. 1999), a

carjacking case, we held that a Virgin

App. 499. Haywood argues that the Islands’ police officer’s testimony was

government did not produce sufficient sufficient to establish that the car in

evidence to show that the bar purchased question had been transported in

goods or services from outside the Virgin interstate or foreign commerce. In Lake,

Islands the police officer, a life-long resident of

the Virgin Islands, testified that “no

However, Detective Foy testified motor vehicles are manufactured in the

that America’s Bar is a business Virgin Islands and that all motor vehicles

established in the Virgin Islands and that have to be shipped to the islands.” Id. at

some products sold at the bar, specifically, 273. Lake argued on appeal that the

Heineken beer and Miller beer, come from police officer’s testimony based on his

the mainland United States. However, long time residence was not sufficient to

Haywood still contends that Detective establish the required commerce element

Foy’s testimony is not sufficient to show of the federal carjacking statute, and that

that the bar purchased Heineken and there was no foundation for his

Miller beer that came from outside the testimony. However, we rejected that

Virgin Islands. The linchpin of argument. We took judicial notice of the

Haywood’s argument is his claim that Foy small size of the Virgin Islands, and held

did not provide a foundation for his that a “police officer and lifelong

knowledge regarding the source of the resident of a place of this type has a

12

sufficient basis to testify as to whether Haywood’s conviction on Count One.

any motor vehicle manufacturing E. Possession of a Firearm During a

facilities are located there.” Id. Crime of Violence.

In Count Two Haywood was

Here, Officer Foy testified that he convicted of possession of a firearm

was assigned to the Safe Streets Task during a crime of violence. The relevant

Force and that he investigates violent statute provides:

federal crimes as a police officer in that [A]ny person who, during

Task Force. Officer Foy also testified that and in relation to any crime

he was familiar with America’s Bar. We o f v i o le n c e or dr u g

believe that this record is sufficient to trafficking crime (including

establish that Officer Foy would have a crime of violence or drug

known of any Heineken or Miller tr a f f ic king c rime that

breweries in the Virgin Islands. provides for an enhanced

Consequently, the evidence was sufficient punishment if committed by

to prove the Heineken and M iller beer sold the use of a deadly or

at America’s Bar came to the Virgin da nge r ous w e a p o n or

Islands from the mainland United States or device) for which the person

otherwise traveled in interstate or foreign may be prosecuted in a court

commerce. 7 Accordingly, we will affirm of the United States, uses or

carries a firearm, or who, in

furtherance of any such

7 crime, possesses a firearm,

Haywood also argues that there is no

shall, in addition to the

evidence to support the exercise of federal

punishment provided for

jurisdiction over what is really a territorial

crime. In support of that argument, he

cites to United States v. McGuire, 178

F.3d 203 (3d Cir. 1999). There, McGuire Haywood. The federal jurisdictional

was convicted of arson of property used in element in § 1951 is that interstate

an activity affecting interstate commerce. commerce is affected. Stirone, 361 U.S. at

McGuire put a pipe bomb in his mother’s 218. Here, it is clear that interstate

car that was used in a local catering comm erce was affected, however

business. The government attempted to minimally, because the bar sold Heineken

establish the federal jurisdictional element and Miller beer that came from outside the

by relying on a bottle of orange juice that Virgin Islands. Moreover, the bar’s assets

was in the trunk of the car. However, we were depleted because money was stolen

held that the bottle of orange juice was too during the robbery. That is far more

inconsequential to support the exercise of consequential than one bottle of orange

federal jurisdiction. Id. at 210-212. juice.

However, McGuire does not help

13

such c ri m e of the night of the robbery. 8

violence or drug In Trombetta v. California, 467

trafficking crime be U.S. 479, 488 (1984), the Court noted that

sentenced to a term “[w]hatever duty the Constitution imposes

of imprisonment of on the States to preserve evidence, that

not less than 5 years. duty must be limited to evidence that

... might be expected to play a significant role

in the suspect’s defense.” In order “[t]o

18 U.S.C. § 924©)(1). He argues here meet this standard of constitutional

that because his § 1951 interference with materiality, evidence must both possess an

commerce by robbery conviction must be exculpatory value that was apparent before

reversed, his § 924(c) possession of a the evidence was destroyed, and be of such

firearm during a crime of violence must a nature that the defendant would be

also be reversed. He reaches this unable to obtain comparable evidence by

conclusion because he claims that the other reasonably available means.” Id. at

interference with commerce by robbery 489.

conviction is the predicate offense for a

conviction under § 924(c). However, this Haywood submits that the lost or

argument is without merit because he was destroyed clothing meets the standard for

properly convicted under § 1951. constitutional materiality because his case

Moreover, a conviction under § 924(c) centered on identification. Thus, the color

does not require a conviction on the crime and type of clothing he wore at the time he

of violence as a predicate offense. United was arrested was relevant to both the

States v. Lake, 150 F.3d at 275. A valid § government and the defense as proof of

924(c) conviction “requires only that the identity. He claims that Charles’s

defendant have committed a violent crime identification of him is based on a white T-

for which he may be prosecuted in federal shirt that Charles said he was wearing.

court. It does not even require that the Ha ywood a llege s the re w as n o

crime be charged; a fortiori, it does not overwhelming evidence that he was

require that he be convicted.” United

States v. Smith, 182 F.3d 452, 457 (6th Cir.

1999) (emphasis in original). 8

The government claims that it neither

lost nor destroyed the clothing Haywood

F. Lost or Destroyed Evidence.

was wearing on the night of the robbery.

Haywood claims that the district

It notes that Detective Monoson testified

court erred by not dismissing the

on cross-examination that the clothing had

superseding indictment against him

been left in a recently condemned police

because the government either lost or

station and that he was unable to enter the

destroyed the clothing he was wearing on

building to search for the clothing because

of the condemnation.

14

wearing a white T-shirt because Charles processing following his arrest. That

was the only person who testified that he photograph was admitted as an exhibit at

was wearing a white T-shirt. Haywood trial, but Haywood does not bother to

claims that he was wearing different mention it now. He also does not argue

clothing. Moreover, he notes that neither that the admission of the photograph was

Santiago nor Rodriquez testified that he error. We fail to understand why it

was wearing a white T-shirt. Therefore, he makes a difference whether the actual

submits that if he had been able to white T-shirt was introduced into

introduce the T-Shirt, it would have been evidence or whether a photograph of

of significant value in rebutting Charles’s Haywood wearing the white T-shirt was

testimony.9 Consequently, he argues the introduced into evidence. Consequently,

unavailability of the clothing severely we hold that the district court did not err

prejudiced his ability to mount a defense. by not dismissing the superseding

indictment against him based on this due

We do not see any merit in this process claim.

argument. Haywood understandably

forgets that he was photographed by the G. Problems with the Interpreter.

police wearing a white T-shirt during Haywood’s challenge to the

translation of testimony is equally

frivolous. At trial, both Santiago and

9 Rodriquez testified with the aid of a

Haywood suggests bad faith on the

Spanish interpreter. Haywood argues

government’s part because the police did

that his convictions must be reversed

not follow standard procedure in

because of a number of problems with

preserving the clothing he wore.

the interpreter, which he claims violated

However, he does not say what standard

his Fifth Amendment due process right

procedure the police did not follow. In

and his Sixth Amendment confrontation

United States v. Deaner, 1 F.3d 192 (3d

right. He first argues that there is no

Cir. 1993), we wrote: “A defendant who

evidence in the record that the interpreter

claims destroyed evidence might have

was certified to translate in federal court,

proved exculpatory if it could have been

as required by 28 U.S.C. § 1827, or

subjected to tests has to show the

otherwise determined to be qualified or

prosecution’s bad faith in ordering or

competent under 28 U.S.C. § 1827(d).

permitting its destruction. Without a

However, Haywood did not object to the

showing of bad faith, failure to preserve

district court’s decision to use the

evidence that might be of use to a criminal

interpreter nor did he raise any issue

defendant after testing is not a denial of

concerning the interpreter’s certification

due process.” Id. at 200 (citations

or qualifications in the district court.

omitted). Here, there is absolutely no

Accordingly, he has waived this issue.

evidence that Haywood’s clothing was

United States v. Hsu, 155 F.3d 189, 205

purposefully lost or destroyed.

15

(3d Cir. 1998) (citing Harris v. City of vacate the conviction on Count Seven and

Philadelphia, 35 F.3d 840, 845 (3d Cir. remand with directions to enter a judgment

1994)). of acquittal.

Haywood’s second argument is that

the interpreter improperly summarized the

testimony of Santiago and Rodriquez.

However, he fails to tell us what testimony

the interpreter summarized or why the

alleged summary was improper.

His third argument is only slightly

less fanciful than the prior two. He claims

that the interpreter consistently translated

testimony in the third person. According

to Haywood, translation in the third person

resulted in confusion because the

translator’s use of the pronouns “she” and

“her” referred not only to Santiago and

Rodriquez, but also to other female

witnesses. In support of his argument he

cites to United States v. Gomez, 908 F.2d

809 (11th Cir. 1990). In Gomez, the

interpreter improperly equated “disco”

with “Elks Lodge,” thereby corroborating

a prior witness’s testimony that was

favorable to the government. Here,

however, there is no claim that the

interpretation in the third person

corroborated any other testimony, and

Haywood fails to provide any concrete

examples of confusion. Therefore, Gomez

does not help. Accordingly, we do not

find any due process violation involving

the use of the interpreter.

III. CONCLUSION

For all of the above reasons, we

will affirm the convictions on Counts One,

Two and Four; vacate the conviction on

Count Five and remand for a new trial; and

16