United States v. Glorious Shavers

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-2790

_____________

UNITED STATES OF AMERICA

v.

GLORIOUS SHAVERS,

a/k/a G,

a/k/a G-Bucks,

a/k/a Julious Colzie,

a/k/a Glorious Grand

Glorious Shavers,

Appellant

_____________

No. 10-2931

_____________

UNITED STATES OF AMERICA

v.

JERMEL LEWIS,

a/k/a STAR,

a/k/a PR-STAR,

a/k/a P

Jermel Lewis,

Appellant

_____________

No. 10-2971

_____________

UNITED STATES OF AMERICA

v.

ANDREW WHITE,

Appellant

_________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(Crim. Nos. 08-01616-001, 08-0161-002, 08-0161-003)

District Judge: Honorable J. Curtis Joyner

Argued March 19, 2012

_________________

Before: RENDELL, FISHER, and CHAGARES, Circuit

Judges.

(Filed: August 27, 2012)

2

Keith M. Donoghue, Esq. (Argued)

Robert Epstein, Esq.

Kai N. Scott, Esq.

Federal Community Defender Office

for the Eastern District of Pennsylvania

601 Walnut Street

The Curtis Center, Suite 540 West

Philadelphia, PA 19106

Attorneys for Appellant Glorious Shavers

Paul J. Hetznecker, Esq. (Argued)

Suite 911

1420 Walnut Street

Philadelphia, PA 19102

Attorney for Appellant Jermel Lewis

Carina Laguzzi, Esq.

Laguzzi & Associates

1500 John F. Kennedy Boulevard

Suite 200

Philadelphia, PA 19102

Attorney for Appellant Andrew White

Robert A. Zauzmer, Esq. (Argued)

Arlene D. Fisk, Esq.

Office of United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Attorneys for Appellee

3

__________________

OPINION

__________________

CHAGARES, Circuit Judge.

This is a consolidated appeal by three codefendants,

Glorious Shavers, Andrew White, and Jermel Lewis

(collectively referred to as the “appellants”), who were

convicted of robbery affecting interstate commerce,

conspiracy to commit robbery affecting interstate commerce,

witness tampering, and using and carrying firearms during

and in relation to a crime of violence. We will vacate

Shavers’s and White’s witness tampering convictions and

Shavers’s eight-year term of supervised release. We will

uphold the three appellants’ convictions on all other counts

and will affirm Lewis’s sentence. Finally, we will remand for

the District Court to resentence Shavers and White in

accordance with this opinion.

I.

This case arose out of a robbery on November 8, 2005

at a single-family house in North Philadelphia. The house

owner, Jeanette Ketchmore (“Jeanette”), had for several years

run an unlicensed bar, or “speakeasy,” out of her basement.

At trial, she described her activity as a party at which family,

friends, and acquaintances would socialize and occasionally

play cards. The speakeasy was not open to the general public.

Jeanette purchased alcohol at a retail store in Philadelphia and

sold it without a license to her guests for $3-$4 per drink.

The brands of alcohol sold included some that are

4

manufactured outside of Pennsylvania such as Hennessy

cognac, Gordon’s gin, Seagram’s gin, and Taylor’s port wine.

When the appellants entered Jeanette’s house on

November 8, 2005 at 5:30 a.m., six to seven people were in

the first floor dining room playing cards. The parties dispute

whether alcohol sales had ceased for the night. The three

appellants entered the residence displaying firearms and

wearing dark-colored hooded sweatshirts with the hoods

drawn tightly around their faces. The appellants forced the

patrons into the basement and ordered them to lie down on

the floor. One of the appellants went to the second floor and

forced Jeanette’s son, Rickey Ketchmore (“Rickey”), to come

downstairs to join the patrons. The appellants then went

through everyone’s pockets and stole two cell phones, a

wallet, and approximately $121 in cash. No money was

stolen directly from Jeanette, however. The appellants also

rummaged through the basement and first floor of the house.

Jeanette testified that the appellants went through her

refrigerator and kept asking where the “weed” (marijuana),

“wet” (PCP), and “oil” (heroin or PCP) was. 1 Joint Appendix

(“JA”) 1168–69, 1217. They also asked Jeanette where “the

money” was. Id. at 1167.

When the police arrived, the three appellants ran out of

the house and down the street. White was seen tossing a

silver gun as he ran. White and Shavers were arrested in the

1

Before trial, the Government moved for leave to file

a superseding indictment adding an allegation that the

appellants attempted to steal drugs from Jeanette. The

District Court denied that request due to discovery violations

and did not permit the admission of evidence supporting that

theory.

5

area soon thereafter. White had two cell phones that were

stolen from the speakeasy patrons and $49 in cash, including

twenty-nine one-dollar bills. Shavers had three live shotgun

shells in his pocket and $87 in cash, including sixty-two one-

dollar bills. After the police apprehended Shavers and White,

they returned to Jeanette’s house and asked eyewitnesses

Alberto Vasquez and Brian Anderson whether they

recognized the two men sitting in the police vehicles.

Vasquez and Anderson identified Shavers and White as two

of the three assailants. Lewis was apprehended years later

after an investigation.

Shavers and White were originally charged with

Pennsylvania offenses and kept in state custody. On March

20, 2008, however, the United States Attorney charged them

with robbery affecting interstate commerce, in violation of the

Hobbs Act, 18 U.S.C. §§ 1951(a) and 2, and using and

carrying a firearm during and in relation to a crime of

violence, in violation of 18 U.S.C. §§ 924(c) and 2. 2 On July

10, 2008, a superseding indictment added Lewis to the first

two counts, and also added charges against all three

appellants of attempts to intimidate, threaten, and/or corruptly

persuade a witness in an official proceeding, in violation of

the Victim and Witness Protection Act of 1982, 18 U.S.C. §

1512(b)(1). The witness intimidation charges were largely

based on telephone calls that the appellants conducted on

state prison telephones in which they made incriminating

comments. On August 20, 2009, the Government filed a

second superseding indictment adding additional witness

tampering counts and a count of conspiracy to commit

2

The state charges were nolle prossed after

commencement of the federal prosecution.

6

robbery in violation of the Hobbs Act against all three

appellants.

A joint trial of the three appellants commenced on

September 9, 2009 in the United States District Court for the

Eastern District of Pennsylvania. After six days of testimony,

the jury found all three appellants guilty of the Hobbs Act and

§ 924(c) violations, and found Shavers and White guilty of

three counts of witness tampering each. Lewis was acquitted

of all witness tampering charges. After denying the

appellants’ motions for judgments of acquittal, the District

Court sentenced Shavers to 144 months of incarceration with

an eight-year term of supervised release, Lewis to 141 months

of incarceration with five years of supervised release, and

White to 196 months of incarceration with five years of

supervised release. All three sentences included a mandatory

minimum consecutive term of eighty-four months on the §

924(c) count. The appellants filed a timely appeal raising ten

arguments that we will address in turn. 3

II. The Hobbs Act Convictions

A.

Shavers and White first contend that the District Court

erroneously instructed the jury that a robbery need only have

a de minimis or potential effect on interstate commerce in

order to violate the Hobbs Act. While the appellants

3

The District Court had jurisdiction over the

prosecution of this criminal action pursuant to 18 U.S.C. §

3231 and we have jurisdiction over the appeal pursuant to 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a).

7

acknowledge that our controlling precedent forecloses relief

on this claim, they seek to preserve it for future review.

We exercise plenary review over a challenge to the

legal accuracy of jury instructions. Armstrong v. Burdette

Tomlin Mem’l Hosp., 438 F.3d 240, 245 (3d Cir. 2006). The

Hobbs Act provides:

Whoever in any way or degree obstructs,

delays, or affects commerce or the movement of

any article or commodity in commerce, by

robbery or extortion or attempts or conspires so

to do, or commits or threatens physical violence

to any person or property in furtherance of a

plan or purpose to do anything in violation of

this section shall be fined under this title or

imprisoned not more than twenty years, or both.

18 U.S.C. § 1951(a). “Commerce” is defined as

commerce within the District of Columbia, or

any Territory or Possession of the United

States; all commerce between any point in a

State, Territory, Possession, or the District of

Columbia and any point outside thereof; all

commerce between points within the same State

through any place outside such State; and all

other commerce over which the United States

has jurisdiction.

Id. § 1951(b)(3).

Due to the requirement that a Hobbs Act offense

“obstructs, delays, or affects” interstate commerce, “the reach

8

of the Hobbs Act is coextensive with that of the Commerce

Clause of the United States Constitution.” United States v.

Walker, 657 F.3d 160, 179 (3d Cir. 2011) (quotation marks

omitted). The Commerce Clause delegates to Congress the

power “[t]o regulate Commerce with foreign Nations, and

among the several States, and with the Indian Tribes.” U.S.

Const. art. I, § 8, cl. 3. In United States v. Lopez, which

involved a challenge to the Gun-Free School Zones Act of

1990, 18 U.S.C. § 922(g)(1)(A), the United States Supreme

Court held that there are “three broad categories of activity”

that Congress may regulate under the Commerce Clause:

(1) “the use of the channels of interstate commerce[;]” (2)

“the instrumentalities of interstate commerce, or persons or

things in interstate commerce, even though the threat may

come only from intrastate activities[;]” and (3) “those

activities having a substantial relation to interstate

commerce.” 514 U.S. 549, 558–59 (1995). The Lopez Court

concluded that the possession of a gun in a local school zone

did not fall into any of those categories. In particular, the

regulated activity did not have a substantial relation to

interstate commerce because “[t]he possession of a gun in a

local school zone is in no sense an economic activity that

might, through repetition elsewhere, substantially affect any

sort of interstate commerce.” Id. at 567.

The District Court in this case instructed the jury on

the interstate commerce element as follows:

The third element that the Government must

prove beyond a reasonable doubt is that the

Defendant’s conduct affected or could have

affected interstate commerce. Conduct affects

interstate commerce if it in any way interferes

9

with[,] changes, alters the movement or

transportation or flow of goods, merchandise,

money or other property in commerce between

or among the states. The effect can be minimal.

It is not necessary to prove that the Defendant

intended to obstruct . . . delay or interfere [with]

interstate commerce or that the purpose of the

alleged crime was to affect interstate commerce.

Further, you do not have to decide whether the

affect on interstate commerce was to be harmful

or beneficial to a particular business or to

commerce in general. You do not even have to

find that there was an actual effect on

commerce. All that is necessary to prove this

element is that the natural consequences of the

offense potentially caused an effect on interstate

commerce to any degree, however minimal or

slight.

JA 2016 (emphasis added). Shavers and White argue that the

District Court’s instruction was incorrect. They interpret

Lopez as holding that Congress may regulate only conduct

that substantially affects interstate commerce, and may not

regulate conduct that has a mere minimal or potential effect

on interstate commerce.

Our decisions have consistently and firmly rejected

that argument. See, e.g., United States v. Urban, 404 F.3d

754, 766 (3d Cir. 2005) (“[W]e have already rejected the

argument that Lopez and its progeny require proof of a

‘substantial effect’ on commerce in an individual case in

order to show a Hobbs Act violation.”). We have held instead

10

that “[i]f the defendants’ conduct produces any interference

with or effect upon interstate commerce, whether slight,

subtle or even potential, it is sufficient to uphold a

prosecution under [the Hobbs Act].” United States v.

Haywood, 363 F.3d 200, 209–10 (3d Cir. 2004) (quotation

marks omitted). A “reasonably probable effect on commerce,

however minimal,” is sufficient to meet the interstate

commerce jurisdictional prerequisite under the Hobbs Act.

Urban, 404 F.3d at 763–64; see also United States v. Clausen,

328 F.3d 708, 711 (3d Cir. 2003) (“[T]he District Court did

not err when it instructed the jury that it need only find that

each robbery had a minimal effect on interstate commerce.”).

While we acknowledge that our long-standing

precedent sets a rather low hurdle for the Government in

Hobbs Act cases, we conclude that our interpretation of the

interstate commerce jurisdictional requirement is supported

by Supreme Court precedent. In Gonzales v. Raich, the

Supreme Court upheld the application of provisions of the

Controlled Substances Act, 21 U.S.C. § 801 et seq., that

criminalize the manufacture, distribution, and possession of

marijuana to intrastate growers and users of marijuana,

holding that Congress possesses the “power to regulate purely

local activities that are part of an economic ‘class of

activities’ that have a substantial effect on interstate

commerce.” 545 U.S. 1, 17 (2005) (citing Wickard v.

Filburn, 317 U.S. 111, 128–29 (1942)). Under the

aggregation theory relied upon in Raich, the Commerce

Clause supports federal regulation of an economic class of

activity that, in the aggregate, substantially affects interstate

commerce. Id. at 17–19. That is the case even where an

individual crime on its own has only a minimal effect on

interstate commerce. Id. at 17 (“[W]hen a general regulatory

11

statute bears a substantial relation to commerce, the de

minimis character of individual instances arising under that

statute is of no consequence.” (quotation marks omitted)).

Even a potential effect may suffice. Id. at 35 (Scalia, J.,

concurring) (“Most directly, the commerce power permits

Congress not only to devise rules for the governance of

commerce between States but also to facilitate interstate

commerce by eliminating potential obstructions, and to

restrict it by eliminating potential stimulants.”). We have

opined that “the Hobbs Act regulates quintessentially

‘economic’ activities” because “property crimes like robbery

and extortion are — unlike the possession of a gun in a school

zone or gender-motivated violence — indisputably

‘economic’ under our post-Lopez precedents.” Walker, 657

F.3d at 179. Like the statute in Raich, the Hobbs Act

regulates an economic “class of activities” that, in the

aggregate, has a substantial effect on interstate commerce.

545 U.S. at 17. The proper standard for such activity,

therefore, is exactly as the District Court articulated it to the

jury.

B.

The three appellants further assert that, even under the

standard as the District Court expressed it, the Government

failed to present sufficient evidence that their crimes had an

adequate effect on interstate commerce to meet the

jurisdictional requirement in the Hobbs Act. On challenges to

the sufficiency of the evidence, we apply “a particularly

deferential standard of review.” United States v. McGuire,

178 F.3d 203, 206 n.2 (3d Cir. 1999). We do not weigh the

evidence or assess the credibility of the witnesses. Id. “[W]e

must view the evidence in the light most favorable to the

12

government, and will sustain the verdict if any rational trier of

fact could have found the essential elements of the crime

beyond a reasonable doubt.” Id. (quotation marks omitted).

We “afford deference to a jury’s findings, and draw all

reasonable inferences in favor of the jury verdict.” United

States v. Moyer, 674 F.3d 192, 206 (3d Cir. 2012) (quotation

marks omitted). We will overturn the verdict “only when the

record contains no evidence, regardless of how it is weighted,

from which the jury could find guilt beyond a reasonable

doubt.” Id.

As we have just discussed, the effect on commerce of a

Hobbs Act robbery may be shown by a “reasonably probable

effect on commerce, however minimal.” Urban, 404 F.3d at

763–64. Where the robbery “produces any interference with

or effect upon interstate commerce, whether slight, subtle or

even potential, it is sufficient to uphold a prosecution under

[the Hobbs Act].” Haywood, 363 F.3d at 210 (quotation

marks omitted). In United States v. Walker, for example, we

held that the robbery of a drug dealer whose drugs originated

in another state had a “direct nexus” to interstate commerce

within the meaning of the Hobbs Act. 657 F.3d at 182. By

robbing a drug dealer, the defendants “directly [sought] to

obstruct the movement of a commodity in commerce.” Id. at

181 (quotation marks and alterations omitted).

In United States v. Haywood, whose facts are

analogous to the facts in this case, the defendant was

convicted under the Hobbs Act of robbing a Virgin Islands

tavern of approximately $50–$70. 363 F.3d at 202. We held

that the interstate commerce nexus was satisfied because the

tavern sold beer that was manufactured outside of the Virgin

Islands. Id. at 211. Likewise, in United States v. Clausen, we

13

held that there was a sufficient nexus to interstate commerce

where the defendants had robbed six businesses that

purchased supplies from other states, and/or had employees or

customers from other states. 328 F.3d at 711–12. We

underscored that “‘the cumulative result of many Hobbs Act

violations is a substantial effect upon interstate commerce,’

and that substantial effect empowers Congress to regulate

pursuant to the Commerce Clause.” Id. at 711 (quoting

United States v. Robinson, 119 F.3d 1205, 1215 (5th Cir.

1997)). 4

4

In some cases, we have also turned to the “depletion

of assets” theory to explain the nexus between the offense

charged and interstate commerce. In United States v. Urban,

for instance, we reviewed the convictions of several city

plumbing inspectors who had committed extortion, allegedly

in violation of the Hobbs Act, by accepting payments from

the plumbers whose work they inspected. 404 F.3d at 759.

We held that the Hobbs Act jurisdictional element was

satisfied because the extortion depleted the assets that the

plumbers had available to purchase supplies made out-of-

state. Id. at 761, 767. We explained that “the depletion of

assets of a person engaged in interstate commerce has at least

a ‘potential’ effect on that person’s engagement in interstate

commerce.” Id. at 767.

That theory is not helpful here. While Rickey testified

that he saw one of the perpetrators holding two bottles of

liquor during the robbery, the Government told the jury in its

closing argument that those bottles did not leave the house.

Thus, we do not rely on that testimony as evidence that

proceeds of the business were stolen.

14

On this record, there was sufficient evidence from

which a rational jury could find beyond a reasonable doubt

that Jeanette was running a business that had the requisite

nexus to interstate commerce. Although the speakeasy was

not a licensed bar, it was selling alcohol and the people

playing cards at the time of the robbery were its customers.

Jeanette had been operating the speakeasy for “years” at the

time of the robbery. JA 1157. In her testimony, Jeanette

agreed that the speakeasy was a business and indicated that

she was making a profit. Id. at 1156, 1163 (“[W]e would

purchase more beer, alcohol, and sometimes I might have

enough to pay a bill to help me with my — send my child to

school.”). Like in Haywood, Jeanette sold alcohol that was

imported from out of state. Although that connection to

interstate commerce is admittedly indirect, it is no more so

than in the cases discussed above and it is a sufficient nexus

to interstate commerce under our jurisprudence. See Urban,

404 F.3d at 761, 767; Haywood, 363 F.3d at 211; Clausen,

328 F.3d at 711–12; see also United States v. Elias, 285 F.3d

183, 189 (2d Cir. 2002) (holding that the interstate commerce

The Government also avers that White’s and Shavers’s

possession of large numbers of one-dollar bills was consistent

with the speakeasy prices of $3-$4 per drink and

demonstrates that they absconded with business assets. The

appellants respond that the possession of many one-dollar

bills is more consistent with the victims’ card playing. Either

way, it was for the jury to decide, based on the other

evidence, which inference to draw from the denominations.

Our role is not to weigh the evidence with respect to such

factual questions so long as there was some evidence

presented from which a reasonable jury could have found the

essential elements of the crime.

15

requirement for a Hobbs Act violation was met where the

defendant robbed a New York grocery store that sold goods

purchased in New York but produced outside of New York

because the robbery “depleted assets that might have been

utilized to purchase out-of-state goods”); United States v.

Mapp, 170 F.3d 328, 336 n.13 (2d Cir. 1999) (holding that

the Hobbs Act jurisdictional nexus was met by the robbery of

a delicatessen that sold goods produced out of state, without

mentioning whether the goods were purchased from out-of-

state or in-state suppliers).

There was also evidence here from which a rational

jury could find beyond a reasonable doubt that the robbery

had an effect, albeit slight or potential, on interstate

commerce. For instance, Jeanette testified that, after the

robbery, she limited her guests to friends and family and then

shut down the operation completely a few months later. At

least one speakeasy customer, Alberto Vasquez, chose not to

return and spend his money at the speakeasy after the

robbery. From that evidence, a jury could reasonably infer

that the robbery caused the business to close. Causing a

business engaged in interstate commerce to close has, or at

least potentially has, an effect on interstate commerce. See

United States v. Jimenez-Torres, 435 F.3d 3, 8 (1st Cir. 2006)

(holding that the Government can satisfy the Hobbs Act

interstate commerce requirement by showing that the robbery

resulted in the closure of a business engaged in interstate

commerce). Moreover, such conduct, in the aggregate, would

have a substantial effect on interstate commerce. See Raich,

545 U.S. at 17–19. Although this robbery was of a small

business that purchased alcohol sold in interstate commerce,

if robberies occurred at and led to the closure of such

establishments on a large scale, the effect on interstate

16

commerce would be substantial. For that reason, the size of

Jeanette’s business and the fact that the appellants stole only

$121 dollars, a wallet, and two cell phones did not make this

crime too small to satisfy the de minimis standard. See

Walker, 657 F.3d at 180 (holding that a robbery of $40 to $50

satisfied the de minimis standard); Haywood, 363 F.3d at

202, 211 n.7 (holding that the de minimis threshold was met

by the robbery of $50 to $70).

The appellants maintain that the facts here are

analogous to those in United States v. McGuire, in which the

defendant was charged with a violation of the federal

explosives statute, 18 U.S.C. § 844(i), for the destruction of a

personal car that was used periodically by a small intrastate

catering business. 178 F.3d at 211. We held that the

Government failed to establish the requisite nexus to

interstate commerce because there was no evidence as to how

often the car was used for the business or that a container of

orange juice from another state that was found in the car was

related to the catering business. Id. at 211–12. Thus, “the

jury was required to guess at” the connection between the car

and the catering business. Id. at 211. McGuire is easily

distinguishable from this case, where the jury was not left to

guess at the connections between the victims of the robbery

and the business, and between the business and interstate

commerce. Additionally, it was undisputed in McGuire that

the catering business did not lose money or customers due to

the defendant’s conduct. Id. at 211. Here, to the contrary,

there was certainly adequate evidence from which a jury

could infer that the robbery was an attempt to — and did in

fact — affect a business operating in interstate commerce.

17

The appellants invite us to follow the Court of Appeals

for the Sixth Circuit and impose a heightened interstate

commerce requirement when the victim of the alleged crime

is an individual rather than a business. In United States v.

Wang, the Court of Appeals for the Sixth Circuit held that the

Hobbs Act interstate commerce nexus was too attenuated

where the defendant robbed the owners of a business in their

home. 222 F.3d 234, 240 (6th Cir. 2000). The Court

concluded that, when the Government seeks to establish a

nexus between an individual victim and a business engaged in

interstate commerce, “that connection must be a substantial

one — not one that is fortuitous or speculative.” Id. at 239–

40. In Wang, some of the stolen money belonged to the

victims’ restaurant that operated in interstate commerce but,

because the robbery was of a home, the Government needed

to do more than show that the victims owned a business. Id.

at 240.

The appellants also note cases in which the interstate

commerce nexus was held to be too tenuous because the

robbery was directed at an individual in his or her personal

capacity rather than at a business. See United States v.

Perrotta, 313 F.3d 33, 38–40 (2d Cir. 2002) (holding that the

interstate commerce nexus was too attenuated where extortion

was directed at a victim who worked for an entity engaged in

interstate commerce, but was aimed at him in his personal

capacity, not in his official capacity); United States v.

Quigley, 53 F.3d 909, 910–11 (8th Cir. 1995) (holding that

the robbery of two individuals en route to a liquor store did

not have a potential effect on interstate commerce); United

States v. Collins, 40 F.3d 95, 99–100 (5th Cir. 1994) (holding

that the Hobbs Act did not apply to the robbery of a computer

company executive in his home, even though the crime may

18

have prevented him from getting to work or making business

calls because his “only connection with interstate commerce

was his employment by a business engaged in interstate

commerce”). The appellants further argue that the connection

must be even stronger when a home is robbed. Indeed, we

have exercised caution when assessing a Hobbs Act

prosecution for the robbery of a home. Jimenez-Torres, 435

F.3d at 7–8 (“Where . . . the crime concerns the robbery of a

home rather than of a business, we approach the task of

applying the de minimus standard with some caution, lest

every robbery (which by definition has some economic

component) become a federal crime.”).

We decline to adopt the heightened standard set forth

in Wang. In this circuit, a robbery under the Hobbs Act need

only have a “reasonably probable effect on commerce,

however minimal.” Urban, 404 F.3d at 763–64. The

“substantial” connection required in Wang has no basis in our

case law and adopting it would contradict our adherence to

the requirement that a robbery need only “produce[] any

interference with or effect upon interstate commerce, whether

slight, subtle or even potential,” in order to support

prosecution under the Hobbs Act. Haywood, 363 F.3d at 210

(quotation marks omitted).

Moreover, Wang and the other cases in which the

robberies were directed at individuals in their personal

capacity rather than at businesses are inapposite. The

appellants here did not rob individuals in their personal

capacity or in their homes. To the contrary, the robbery

occurred in Jeanette’s place of business, her customers were

victimized and robbed, and there was evidence that the

robbery targeted business assets. Testimony from customers

19

of the speakeasy indicated that the gatherings at Jeanette’s

were not merely social events with friends. For instance,

Vasquez testified that Jeanette’s house was “a place where

people would go after time inside the bars that they closed up

at 2:00. You stop in for a couple drinks. It’s known on the

streets as a speakeasy.” JA 962–63. Likewise, Anderson

testified that the basement was “set up like a bar” and that “it

was a speakeasy.” Id. at 871, 899. Even if we assume that

alcohol was no longer being sold at the time of the robbery,

that disputed fact does not alter our conclusion, as the reason

the victims were in Jeanette’s house was due to her business

selling alcohol and they were still playing cards in the dining

room when the robbery occurred. Thus, there was sufficient

evidence that appellants robbed individuals, but in their

capacity as customers of a business.

There was also evidence in the record from which a

rational jury could conclude that the appellants targeted the

assets of Jeanette’s business, not solely the customers. The

appellants had a meeting the night before the robbery in

which they learned about a house with “a lot of money in it.”

JA 1430. During the robbery, they asked Jeanette where “the

money” was and rummaged through her refrigerator. App.

1167–69. The nexus to interstate commerce in this case was,

therefore, more direct than in Wang and the other cases cited

by the appellants. See Walker, 657 F.3d at 181 (holding that

the connection between the robbery and interstate commerce

was “much more direct” than in Wang because, at the time of

the robbery, the victim in Walker was selling illegal drugs

that had traveled through interstate commerce).

We recognize that this case stands at the outer limit of

Hobbs Act jurisdiction and it is far from obvious which cases

20

are purely matters for state prosecution. The Hobbs Act

interstate commerce question must be resolved on a case-by-

case basis. See Lopez, 514 U.S. at 561 (noting that a “case-

by-case inquiry” is undertaken for statutes containing a

jurisdictional element). When we view the evidence in this

case in the light most favorable to the Government, we

conclude that there was a sufficient nexus to interstate

commerce to support the appellants’ convictions under the

Hobbs Act.

III. The Witness Tampering Convictions

Shavers and White next contend that the evidence

presented at trial was insufficient to support their convictions

for witness tampering. Despite the considerable deference

that we afford to a jury’s findings in reviewing a conviction

for sufficiency of the evidence, we agree and conclude that

the evidence in this case does not support the witness

tampering convictions.

A.

In relevant part, the Victim and Witness Protection Act

of 1982 (“VWPA”) provides:

(b) Whoever knowingly uses intimidation,

threatens, or corruptly persuades another

person, or attempts to do so, or engages in

misleading conduct toward another person, with

intent to–

(1) influence, delay, or prevent the testimony of

any person in an official proceeding;

21

(2) cause or induce any person to--

(A) withhold testimony, or withhold a

record, document, or other object, from

an official proceeding;

(B) alter, destroy, mutilate, or conceal an

object with intent to impair the object’s

integrity or availability for use in an

official proceeding;

(C) evade legal process summoning that

person to appear as a witness, or to

produce a record, document, or other

object, in an official proceeding; or

(D) be absent from an official proceeding

to which such person has been

summoned by legal process; or

(3) hinder, delay, or prevent the communication

to a law enforcement officer or judge of the

United States of information relating to the

commission or possible commission of a

Federal offense or a violation of conditions of

probation supervised release, parole, or release

pending judicial proceedings;

shall be fined under this title or imprisoned not

more than 20 years, or both.

18 U.S.C. § 1512(b).

22

Shavers and White were convicted of violating §

1512(b)(1), which seeks to safeguard anticipated testimony in

an “official proceeding.” An “official proceeding” for the

purposes of the VWPA is defined as

a proceeding before a judge or court of the

United States, a United States magistrate judge,

a bankruptcy judge, a judge of the United States

Tax Court, a special trial judge of the Tax

Court, a judge of the United States Court of

Federal Claims, or a Federal grand jury.

Id. § 1515(a)(1)(A). The VWPA explicitly provides that “an

official proceeding need not be pending or about to be

instituted at the time of the offense.” Id. § 1512(f)(1). There

does, however, need to be a connection between the

defendant’s conduct and the official proceeding. In Arthur

Anderson LLP v. United States, the United States Supreme

Court reviewed convictions under § 1512(b)(2)(A) and (B).

544 U.S. 696, 698 (2005). The Court held that to satisfy the

“official proceeding” requirement under those subsections,

the Government must show a “nexus” between the

defendant’s conduct and a particular proceeding. Id. at 707–

08. To meet that nexus requirement, the Government must

prove that the defendant “ha[d] in contemplation [a]

particular official proceeding” when he or she attempted to

interfere with evidence or a witness. Id. at 708. The

proceeding need not have been pending or about to be

instituted, but it must have been foreseeable. Id. at 707–08.

Thus, the defendant “must believe that his actions are likely

to affect a particular, existing or foreseeable official

23

proceeding.” United States v. Kaplan, 490 F.3d 110, 125 (2d

Cir. 2007) (citing Arthur Anderson, 544 U.S. at 708).

While the Court in Arthur Anderson interpreted §

1512(b)(2)(A) and (B) only, the Court’s analysis and

application of the “nexus” requirement applies with equal

force to § 1512(b)(1). All three subsections qualify the

prohibited conduct by requiring that the defendant target

testimony or evidence in an “official proceeding.”

Consistency demands that we apply the Arthur Anderson

nexus requirement to § 1512(b)(1). See United States v.

Matthews, 505 F.3d 698, 708 (7th Cir. 2007) (holding that

Arthur Anderson applies to prosecutions under § 1512(c)(1)

because that subsection also “speaks in terms of the

relationship between obstructive acts and a proceeding.”);

Kaplan, 490 F.3d at 126 (noting that the jury instructions on

the § 1512(b)(1) charge “undoubtedly needed to comply with

the nexus requirement discussed in Arthur Anderson”).

Accordingly, the Government in a § 1512(b)(1)

prosecution is tasked with proving that the defendant

contemplated a particular “official proceeding” that was

foreseeable when he or she engaged in the proscribed

conduct. As part of that requirement, the Government must

demonstrate beyond a reasonable doubt that the contemplated

proceeding met the definition of “official proceeding”

articulated in § 1515(a)(1)(A). The VWPA is clear, however,

that the Government is not required to show that the

defendant knew that the contemplated proceeding was federal

in nature:

In a prosecution for an offense under this

section, no state of mind need be proved with

24

respect to the circumstance . . . that the official

proceeding . . . is before a judge or court of the

United States, a United States magistrate judge,

a bankruptcy judge, a Federal grand jury, or a

Federal Government agency . . . .

18 U.S.C. § 1512(g)(1).

The parties dispute whether the United States Supreme

Court’s recent decision in Fowler v. United States affects our

analysis. 131 S. Ct. 2045 (2011). In Fowler, the Court

considered the federal nature requirement in § 1512(a)(1)(C),

which proscribes the murder of a person with the intent to

“prevent the communication by any person to a law

enforcement officer or judge of the United States of

information relating to the commission or possible

commission of a Federal offense.” The federal prosecution in

Fowler arose after Charles Fowler shot a police officer who

caught him and his associates suiting up to rob a bank. 131 S.

Ct. at 2048. It was clear that Fowler had shot the officer with

the intent to prevent him from speaking to other law

enforcement officers but that he did not have any specific law

enforcement officer or set of officers in mind at the time. To

satisfy the federal nexus requirement in such a situation, the

Court held, the Government must demonstrate “a reasonable

likelihood that, had, e.g., the victim communicated with law

enforcement officers, at least one relevant communication

would have been made to a federal law enforcement officer.”

Id. at 2052 (emphasis in original).

Unresolved is whether the “reasonable likelihood” test

set forth in Fowler applies to prosecutions brought under §

1512(b)(1) as well. We decide that question in the negative.

25

Critically, Fowler was a prosecution under § 1512(a)(1)(C),

which, like § 1512(b)(3), is an investigation-related provision

aimed at protecting the communication of information to law

enforcement. Once again, § 1512(b)(1) is distinct from those

provisions because it seeks to protect anticipated testimony in

a particular official proceeding. See Byrne, 435 F.3d at 24

(“Unlike [§ 1512] (b)(2) and 18 U.S.C. § 1503, which protect

particular ‘official proceedings,’ [§ 1512] (b)(3) protects the

general ability of law enforcement agents to gather

information relating to federal crimes . . . .” (citation

omitted)). The “reasonable likelihood” standard set forth in

Fowler relates to the probability of a victim communicating

information to a federal officer, an element required under the

investigation-related provisions of § 1512 but not the official

proceeding provisions. Thus, by its very nature, the

“reasonable likelihood” standard set forth in Fowler is

fashioned for the analysis of a materially different offense

than the one described in § 1512(b)(1). For the same reasons

that the holding in Arthur Anderson does not apply to

§ 1512(b)(3) offenses and the other investigation-related

offenses in the VWPA, it would be illogical to employ the

Fowler holding in prosecutions brought under the VWPA

provisions that require contemplation of an “official

proceeding.”

Furthermore, it is difficult to conceive of how we

could reconcile the “reasonable likelihood” standard from

Fowler with the holding in Arthur Anderson, which requires

that the Government prove that the defendant contemplated a

particular official proceeding. The Fowler decision addressed

a situation in which the defendant did not have in

contemplation a particular group of law enforcement officers.

Thus, if applied to § 1512(b)(1), the rule set forth in Fowler

26

would directly contradict the Arthur Anderson

pronouncement. See Arthur Anderson, 544 U.S. at 708 (“A

knowingly corrupt persuader cannot be someone who

persuades others to shred documents under a document

retention policy when he does not have in contemplation any

particular official proceeding in which those documents might

be material.” (alterations and quotation marks omitted)). It is

telling that the Fowler opinion does not mention Arthur

Anderson. If the Supreme Court intended to overrule Arthur

Anderson and for all of the VWPA to be governed by Fowler,

it presumably would have mentioned Arthur Anderson and

explained why. See, e.g., Shalala v. Ill. Council on Long

Term Care, Inc., 529 U.S. 1, 18 (2000) (“The Court does not

normally overturn, or so dramatically limit, earlier authority

sub silentio.”). Instead, the Court crafted a distinct inquiry

for prosecutions under the VWPA provisions that target

interference with witness communication to law enforcement

officers. This again leads us to the logical conclusion that

there are at least two lines of jurisprudence developing

separately under the VWPA: one for the investigation-related

provisions, such as § 1512(b)(3) and (a)(1)(C), and one for

the “official proceeding” provisions, such as § 1512(b)(1) and

(b)(2). See Ronda, 455 F.3d at 1288 (observing that the link

to a federal proceeding in the investigation-related provisions

is less stringent than the “official proceeding” requirement in

§ 1512(b)(1) and (2)). Hence, we hold that a successful

prosecution under § 1512(b)(1) requires proof, beyond a

reasonable doubt, that the defendant contemplated a

particular, foreseeable proceeding, and that the contemplated

proceeding constituted an “official proceeding,” as defined by

§ 1515(a)(1)(A).

B.

27

Applying the above-stated principles, we conclude that

the Government’s evidence at trial was insufficient to satisfy

the “official proceeding” requirement in this case. It is clear

from the transcript of the telephone calls that Shavers’s and

White’s efforts were directed at preventing potential

witnesses of the speakeasy robbery from testifying at their

upcoming hearing in Pennsylvania state court. There is no

evidence that they contemplated any other proceeding. In the

telephone calls at issue, Shavers and White expressly referred

to specific upcoming state court hearings. In his prison phone

call on November 12, 2005, for instance, White discussed the

speakeasy robbery and who would show up at his upcoming

court date. The contemplated court date could only have been

a hearing in state court, as the federal prosecution was not

initiated until over a year later. On November 14, White

mentioned needing someone to show up for court the

following day for a “preliminary.” JA 2106. In that same

conversation, Shavers discussed that he would be going to

court the following day. On November 18, White stated that

they would be “back to court the 30th.” Id. at 2132. Then, in

the November 30 conversation, Shavers told the person on the

other end of the line that they had gone to court and would go

back in three weeks on January 24. Likewise, in the January

9, 2006 conversation, Shavers mentioned that he would be

going to court for his “preliminary” on January 24. Id. at

2159. Finally, on September 2, White told the caller that “I

got trial on the 18th, I need you to handle somethin’ for

me[.]” Id. at 2202. All of these conversations demonstrate

that Shavers and White had in contemplation specific

hearings in state court, not an “official proceeding” as defined

by § 1515(a)(1)(A), which, again, requires that the

contemplated proceeding be federal in nature. There was no

28

discussion of any other proceeding nor indication that

Shavers and White intended to prevent the witnesses from

testifying at a proceeding other than the state court one. 5

The District Court held that, at the time of the alleged

witness tampering, there was “a sufficient basis for one to be

put on notice” of the potential for federal prosecution. Id. at

1811. Indeed, there was evidence that Shavers and White

were aware that they were subject to a federal investigation

by November 18, 2005 at the latest. In connection with the

robbery of a post office on November 7, 2005, the FBI

initiated an investigation into the overall activities of the

group of people associated with Ebony Gist, including

Shavers and White. Two weeks after the robberies, postal

inspectors and the Philadelphia Police Department executed a

search warrant at Gist’s home. Postal inspectors also began

reviewing the prison telephone calls of Shavers and White.

The prison telephone call transcripts reveal that Shavers and

White learned on November 18, 2005 (at the latest) that

federal agents were investigating them in connection with the

post office robbery. Id. at 2130 (Kenneth Ford: “[T]hey got

the Feds, SWAT, ramming the houses up in there and all.”

Shavers: “I heard, man[.]”); id. at 2145 (Darryl Harris: “The

law ran into Eb’s spot last night.” White: “What? The Feds

the … boy.”). Notwithstanding that evidence, the appellants’

knowledge of the post office robbery investigation does not

support the Government’s case here because the attempts at

5

Shavers was convicted of violating § 1512(b)(1) for

telephone conversations occurring on November 14 and 18,

2005 and January 9, 2006. White was convicted of violating

§ 1512(b)(1) for telephone conversations occurring on

November 12 and 18, 2005, and September 2, 2006.

29

witness tampering were so obviously directed at specific state

court proceedings and not some other possible proceeding.

Our discussion in United States v. Bell is instructive.

113 F.3d 1345 (3d Cir. 1997). In Bell, Roberta Ronique Bell

and several others were accused of murdering Doreen

Proctor, who was scheduled to testify against Bell’s

boyfriend, David Tyler, in his state trial on drug offenses. Id.

at 1347. Bell was charged with violating § 1512(a)(1)(A) and

(C) (relating to the murder of a witness), and § 1512(b)(1),

(2), and (3). Although our discussion of the § 1512(b)(1)

charge was limited, we specified that Ҥ 1512 clearly would

not apply if Bell’s sole motivation in killing Proctor was to

prevent her from testifying at Tyler’s trial, because that state-

court trial does not qualify as an ‘official proceeding.’” Id. at

1349. That is undoubtedly the case here. Even though a

federal proceeding was arguably foreseeable in this case,

there was no nexus between the possible federal proceeding

and the appellants’ conduct. Their conduct was

unequivocally in contemplation of a state court proceeding.

The Government asserts that this case is similar to

United States v. Persico, in which the Court of Appeals for

the Second Circuit held that a federal criminal proceeding

was foreseeable where the defendant had been informed by

the Government that he was the target of a federal

investigation. 645 F.3d 85, 108 (2d Cir. 2011). Persico is

distinguishable from the case at bar, however. In Persico,

there was no pending state criminal proceeding at the time the

defendant engaged in witness tampering. Thus, there was no

dispute that the particular proceeding contemplated by the

defendant was the imminent federal grand jury proceeding.

Here, Shavers and White were clearly contemplating their

30

upcoming hearings in Pennsylvania state court, and not any

federal proceeding, when they sought to tamper with potential

witnesses.

For that reason, we hold that no rational trier of fact

could have found the essential elements of a § 1512(b)(1)

violation beyond a reasonable doubt. See United States v.

Shively, 927 F.2d 804, 811–12 (5th Cir. 1991) (holding that

the Government had not produced evidence that the defendant

intended to influence an official proceeding because the

evidence showed only that he intended to influence the state

civil proceedings that he had brought against his insurance

agency). As such, we will vacate Shavers’s convictions on

Counts Five, Six, and Seven, and White’s convictions on

Counts Four, Six, and Eight.

IV. The Identification Evidence

The appellants challenge the admission of a number of

eyewitness identifications on due process grounds, arguing

that they were the result of impermissibly suggestive

procedures and were unreliable. After a suppression hearing,

the District Court summarily held that the identification

procedures used by the police were not unduly suggestive and

the identifications were, therefore, admissible. We find no

basis for reversal with respect to the identification evidence.

A.

We review the District Court’s ruling on the admission

of identification testimony for an abuse of discretion. United

States v. Brownlee, 454 F.3d 131, 137 (3d Cir. 2006). In

reviewing the denial of a motion to suppress, we examine the

31

District Court’s factual findings for clear error and review its

legal determinations under a plenary standard. Id.

To determine whether an out-of-court identification

procedure violated due process, we conduct a two-step

inquiry. First, we assess whether the police used an

identification procedure that was unnecessarily suggestive.

Perry v. New Hampshire, 132 S. Ct. 716, 724 (2012). In

answering the question of whether a show-up identification

was impermissibly suggestive, “each case must be considered

on its own facts.” Neil v. Biggers, 409 U.S. 188, 196 (1972)

(quotation marks omitted). Even where the police employed

an unnecessarily suggestive procedure, however, the

identification testimony is not automatically excluded. Perry,

132 S. Ct. at 724. Instead, as a second step, we engage in a

case-by-case analysis of whether the procedure gave rise to

such a “substantial likelihood of misidentification” that

admitting the identification would be a denial of due process.

Id. If so, the identification evidence must be excluded. If, on

the other hand, “the indicia of reliability are strong enough to

outweigh the corrupting effect of the police-arranged

suggestive circumstances, the identification evidence

ordinarily will be admitted, and the jury will ultimately

determine its worth.” Id. at 720. Recently, in Perry v. New

Hampshire, the United States Supreme Court directed that

courts should not reach the reliability inquiry unless the

identification resulted from a situation created by improper

police conduct. Id. at 728.

B.

White and Shavers first protest the admission of

identifications made by eyewitnesses Brian Anderson and

32

Alberto Vasquez at the scene of the robbery. They argue that

the out-of-court “show-up” witness identifications were

impermissibly suggestive because the witnesses made the

identifications while Shavers and White were handcuffed in

police vehicles at the scene of the robbery and bystanders

were commenting on the men in the vehicles. The appellants

maintain that the on-scene identifications were unnecessary

because the police could have just as easily conducted a

lineup at the police station, and that they were unreliable

because neither witness had an opportunity to observe all of

the perpetrators’ facial features during the robbery.

We have recognized that a show-up identification

procedure of the sort employed here “is inherently suggestive

because, by its very nature, it suggests that the police think

they have caught the perpetrator of the crime.” Brownlee,

454 F.3d at 138; see also Stovall v. Denno, 388 U.S. 293, 302

(1967), overruled on other grounds by Griffith v. Kentucky,

479 U.S. 314 (1987) (“The practice of showing suspects

singly to persons for the purpose of identification, and not as

part of a line-up, has been widely condemned.”).

Nonetheless, show-up identifications may be necessary when

there is an “imperative” need for an immediate identification.

Stovall, 388 U.S. at 302. For instance, exigency justified a

show-up identification without the presence of counsel in

Stovall v. Denno because a key witness was critically injured

in the hospital and a show-up identification was “the only

feasible procedure.” Id.

In United States v. Brownlee, we held that show-up

identifications by a number of eyewitnesses in that case were

unduly suggestive. 454 F.3d at 138. The police conducted

the identifications while the defendant, who was suspected of

33

car-jacking, was handcuffed in the police cruiser at the scene

where the stolen car had crashed. The entire scene gave the

impression that the police had apprehended the defendant in

the stolen car. Exacerbating the suggestiveness were the facts

that the defendant was the only suspect shown, the four

witnesses made identifications while exposed to each others’

influence, and there was no reason why the defendant could

not have been taken to the police station for a less suggestive

line-up or photo array. Id.

We conclude that the show-up identifications in this

case were unnecessarily suggestive. Like in Brownlee, the

identifications took place while Shavers and White were

handcuffed in patrol cars at the scene of the crime and they

were the only suspects shown to the witnesses. Moreover, as

in Brownlee, there was a risk here that the witnesses

influenced each other. In particular, when the officers pulled

up to the robbery scene with the appellants in police vehicles,

the eyewitnesses waiting outside of the house approached the

patrol car and police van, started pointing at Shavers and

White and said “that’s the guys that just left out of there.” JA

556. Anderson testified that he pointed at the suspects to

identify them and he could hear the other witnesses

discussing and identifying the suspects. Id. at 555.

The Government proffered no reason why the

appellants and witnesses were not taken to the police station

for a less suggestive line-up or photo array, or at least down

the street for a less suggestive show-up identification. We

acknowledge that some exigency existed here because, due to

witness reports that the perpetrators were carrying firearms, it

was vital to know immediately whether the correct people had

been apprehended. See Simmons v. United States, 390 U.S.

34

377, 384–85 (1968) (holding that a show-up identification

procedure was not unnecessarily suggestive because “[a]

serious felony had been committed[,] [t]he perpetrators were

still at large[,] [and it] was essential for the FBI agents swiftly

to determine whether they were on the right track . . . .”). It

was also important to conduct the identifications while the

witnesses’ memories were still fresh. See United States v.

Funches, 84 F.3d 249, 254 (7th Cir. 1996) (“We have also

recognized that immediate show-ups can serve other

important interests. For example, show-ups allow

identification before the suspect has altered his appearance

and while the witness’ memory is fresh, and permit the quick

release of innocent persons.” (quotation marks omitted));

United States v. Watson, 76 F.3d 4, 6 (1st Cir. 1996) (holding

that a show-up identification was not impermissibly

suggestive where it took place immediately after the unlawful

conduct and was necessary to avoid arresting the wrong

person). Despite the urgency at hand, however, the

suggestiveness of the identification procedure could have

been easily minimized if the officers had parked down the

street and brought each eyewitness separately to make an

identification.

Although the identifications under these circumstances

were unnecessarily suggestive, their presentation to the jury

was still appropriate because the circumstances did not create

a substantial risk of misidentification. In making that

assessment, we take into account the totality of the

circumstances. Biggers, 409 U.S. at 196. In Neil v. Biggers,

the Supreme Court set forth various factors that aid courts in

determining whether an identification was reliable despite a

suggestive procedure: (1) “the opportunity of the witness to

view the criminal at the time of the crime,” (2) “the witness’

35

degree of attention,” (3) “the accuracy of the witness’ prior

description of the criminal,” (4) “the level of certainty

demonstrated by the witness at the confrontation,” and (5)

“the length of time between the crime and the confrontation.”

Id. at 199–200. In Biggers, the Court held that a show-up

identification was reliable despite a suggestive procedure

because the victim spent a lot of time in close proximity with

her assailant, her description to police was “more than

ordinarily thorough,” she had “no doubt” that the defendant

was the assailant, and she had been presented with a number

of previous show-up identification inquiries without making

an identification. Id. at 200–01. To warrant the exclusion of

evidence, the Biggers factors must indicate a substantial risk

of misidentification. The existence of “potential

unreliability” alone is not enough to compel exclusion of an

identification because there are “other safeguards built into

our adversary system” that minimize the risk that a jury will

place “undue weight on eyewitness testimony of questionable

reliability.” Perry, 132 S. Ct. at 728. Those safeguards

include cross-examination, the right to effective assistance of

counsel, eyewitness-specific jury instructions, the beyond a

reasonable doubt standard, and the state and federal rules of

evidence. Id. at 728–29.

In Brownlee, we held that the eyewitness

identifications were reliable despite law enforcement’s use of

an impermissibly suggestive procedure. We noted that some

facts suggested a risk of misidentification: (1) the

abbreviated duration of the car-jacking — only 30 seconds;

(2) the victim’s testimony that she was predominantly

focused on the weapon, not the perpetrator, during the car-

jacking; (3) the victim’s mistaken account to the police that

the perpetrator was a child wearing shorts, when he was

36

actually a 30 year-old wearing pants; and (4) the generality of

the witnesses’ descriptions of the perpetrator. Brownlee, 454

F.3d at 140. Despite those concerns, we concluded that the

identifications were properly admitted because the witnesses

were able to observe the perpetrator at close range, in broad

daylight, and for sufficient time; their testimony revealed a

substantial degree of attention during the crime; their

descriptions were fairly accurate; their degree of certainty

was absolute; and only 25 minutes had elapsed between the

crime and the eyewitness identifications. Id. We decided that

the facts undermining the reliability of the identifications —

“[t]he generality of the witnesses’ descriptions of the suspect,

the relatively short period of time they saw him, and the other

shortcomings pertaining to their identifications” — went

“more to the weight of the evidence than the reliability of

their identifications, and thus were issues for the jury.” Id.

Biggers and Brownlee drive our conclusion that

Vasquez’s and Anderson’s identifications did not present a

substantial risk of misidentification. With respect to the first

Biggers factor, Anderson and Vasquez both had the

opportunity, albeit brief, to view the appellants’ clothing and

faces. On the morning of November 8, 2005, Anderson

witnessed three armed gunmen wearing hooded sweatshirts

enter Jeanette’s residence and order everyone down on the

ground. Anderson testified about Shavers that he could see

“part of his face,” including his nose, mustache, and the top

of his forehead. JA 878. Of the other appellants, he testified:

“[T]he other one I could see his face. . . . The other one, he

had his hood like real loose. I could see his whole face.” Id.

After the robbery, he recognized the men in the police cars

“[b]ecause of their size and their faces. They still had the

black hoodies on.” Id. at 882.

37

Similarly, Vasquez testified that the three perpetrators

wore hooded sweatshirts that did not show their faces and he

could see “only like their eyes and maybe their foreheads.”

Id. at 966. Nevertheless, he was able to identify the man with

the shotgun, Shavers, because he unzipped his hooded

sweatshirt. Id. at 966–67. He also testified that he was able

to see White’s face. Id. at 975. When asked to identify the

men in the police cars after the robbery, Vasquez recognized

them “based on the appearance of their faces and their clothes

that they were wearing . . . . They were similar, and facial

structures, they had the same faces that I had seen when they

took their hoods off, and they were wearing the same clothing

and hoodies at the time.” Id. at 978–79.

Although the witnesses were only able to view the

perpetrators for a short time and could only see parts of their

faces, they saw them at close range and were able to give an

accurate general description including what the perpetrators

looked like and what they were wearing. As we held in

Brownlee, the short amount of time in which the witnesses

were able to observe the perpetrators and the generality of

their descriptions were facts for the jury to consider rather

than ones that precluded admission of the identifications. 454

F.3d at 140. Shavers notes that Vasquez inaccurately testified

about his weight, stating that he weighed 150 pounds, when

200 pounds was more accurate. An inconsistency such as

this, however, is for the jury to consider when they decide

how to weigh an identification. See id.

The second Biggers factor also supports the reliability

of the eyewitness identifications. The witnesses’ testimony

illustrates that they were paying close attention to the

perpetrators. For instance, they knew the kinds of firearms

38

the perpetrators carried: “Mr. Lewis had a black 9-millimeter

or .45 caliber” and “[t]he other gentleman . . . had a nickel-

plated pistol.” JA 969. The possibility that Anderson and

Vasquez were more focused on the firearms than on the

perpetrators’ faces was another question for the jury, not a

reason to surmise that there was a substantial risk of a

misidentification as a matter of law. See Brownlee, 454 F.3d

at 140.

The third Biggers factor has no bearing on this case

because Vasquez and Anderson gave no description of the

perpetrators prior to their on-the-scene identifications. The

fourth Biggers factor counsels that there was little risk of

misidentification here because, like the witnesses in

Brownlee, both Anderson and Vasquez testified that they

were certain that they had identified the correct men.

Furthermore, Vasquez and Anderson both repeatedly

corroborated their initial identifications. Later on the day of

the robbery, Vasquez recognized White at the prison. Two

years after the robbery, Anderson identified Shavers and

White when shown separate pictures. Four years after the

robbery, Anderson was placed in the same holding cell as

Lewis, Shavers, and White where he recognized all three as

involved in the robbery. And, at trial, Vasquez and Anderson

identified all three appellants.

Finally, the police presented Vasquez and Anderson

with the suspects within minutes of the robbery. There is an

inherent reliability to an identification made immediately

following the witness’s confrontation with the suspect

because the perpetrator’s appearance is fresh in the witness’s

mind. We articulated that principle in United States v.

Gaines, when we held that an on-the-scene show-up

39

identification made immediately following a bank robbery

was justified by, inter alia, the inherent reliability of an

immediate identification. 450 F.2d 186, 197 (3d Cir. 1971).

Similarly, in United States v. Hawkins, another robbery case,

the Court of Appeals for the Seventh Circuit held that a show-

up identification was reliable, in part, because it was

conducted within an hour of the crime. 499 F.3d 703, 710

(7th Cir. 2007).

Scrutiny of the Biggers factors as applied to the facts

of this case convinces us that the show-up identifications did

not present a substantial likelihood of misidentification.

Thus, we hold that the District Court properly permitted the

jury to hear testimony about the show-up identifications and

the related in-court identifications.

C.

Lewis challenges identifications made by Vasquez and

Anderson as well. First, he objects to the admission of

Vasquez’s identification of him on June 25, 2008 in an eight-

person photo array. In viewing the photo array, Vasquez

initially stated that he could not decide whether the third

perpetrator was Lewis or the person in the fourth photo, a

filler. Nevertheless, he later identified Lewis in court at the

pretrial hearing and testified that he was 100% sure that the

third perpetrator was Lewis after he studied the pictures in the

photo array more closely. Lewis maintains that the photo

array and in-court identifications by Vasquez should have

been suppressed because they were unreliable.

Vasquez’s position is unpersuasive. As discussed

above, the reliability prong of the due process analysis is only

40

reached if the court determines that law enforcement used an

impermissibly suggestive procedure. See Perry, 132 S. Ct. at

724 (“[D]ue process concerns arise only when law

enforcement officers use an identification procedure that is

both suggestive and unnecessary.”). Because Lewis has

proffered no reason why the photo array was unnecessarily

suggestive, there is no basis for finding a due process

violation occurred here and we do not reach the reliability

inquiry.

D.

Next, Lewis asserts that Anderson’s in-court

identification of him was the result of an impermissibly

suggestive encounter in which Anderson (who was

incarcerated) was placed in a United States Marshal’s Service

holding cell with the three appellants three months before

trial. 6 On the day the encounter took place, June 14, 2009, a

suppression hearing had been scheduled to occur. When the

6

White states in his brief that he joins Lewis’s

argument with respect to Anderson’s identification. Lewis’s

brief provides no argument on White’s behalf, however.

Assessing identification evidence is a predominantly fact-

based inquiry and White provides no factual support or

argument illustrating why Anderson’s identification of him

was admitted in violation of due process. White has,

therefore, inadequately presented the issue on appeal, See

Skretvedt v. E.I. DuPont DeNemours, 372 F.3d 193, 202–03

(3d Cir. 2004) (“[A]n issue is waived unless a party raises it

in its opening brief, and for those purposes a passing

reference to an issue will not suffice to bring that issue before

this court.”).

41

hearing was cancelled, the Government decided to conduct a

preparatory session with Anderson instead and did not cancel

his order of transport from prison to federal court. For an

unknown reason, however, the order to transport the

appellants to the courthouse was not cancelled and Anderson

was inadvertently placed in a holding cell with them.

Anderson first recognized Lewis by his face and voice when

they were transported from the prison block in an elevator

together with two other prisoners (not Shavers and White).

When Anderson, Lewis, Shavers, and White were later placed

in a holding cell together, Anderson recognized all three

appellants as the perpetrators of the robbery. He then

identified them at the pretrial hearing and at trial. Lewis

moved to suppress Anderson’s in-court identification of him

on the grounds that Anderson had failed to identify Lewis

previously but then recognized him as involved in the robbery

after encountering him in the holding cell with the other

appellants.

Due to the holding cell mishap, Anderson’s in-court

identification of Lewis is certainly suspect. In United States

v. Emanuele, we dealt with a somewhat analogous incident.

51 F.3d 1123 (3d Cir. 1995). In that case, two witnesses were

sitting outside of the courtroom during trial when they

observed the defendant walking down the corridor in

handcuffs with a Deputy United States Marshal on either side

of him. Id. at 1129–30. We declared that the situation was

impermissibly suggestive. Id. at 1130. In light of Emanuele,

the suggestive nature of the situation in this case is evident.

Two years after the robbery, Anderson could not identify

Lewis in a photo array. When Anderson saw Lewis in the

prison elevator while exiting the prison on a day he knew he

was going to testify about the speakeasy robbery, it was

42

natural for him to suspect that Lewis was the third person

involved in the robbery. That suspicion was likely confirmed

when he and Lewis were then placed in a holding cell with

Shavers and White, whom Anderson had already identified.

Placing Lewis in an elevator and then a holding cell with a

key witness could have and should have been avoided. It is

equivalent to allowing a witness to observe a defendant in

shackles outside the courtroom.

The Government asserts that placing the four men

together was inadvertent. The lack of an improper motive is

immaterial, however, because the encounter was still the

result of improper conduct on the part of law enforcement.

See id. (“We conclude that the confrontation was caused by

the government, albeit inadvertently . . . .”). Under Perry, the

police must take an active role in creating the suggestive

situation before the reliability inquiry is reached. That

prerequisite can be gleaned from the Court’s use of the active

verbs “arrange,” “employ,” “use,” and others throughout the

opinion. See Perry, 132 S. Ct. at 724 (“[D]ue process

concerns arise only when law enforcement officers use an

identification procedure that is both suggestive and

unnecessary.”); id. at 726 (“The Court adopted a judicial

screen for reliability as a course preferable to a per se rule

requiring exclusion of identification evidence whenever law

enforcement officers employ an improper procedure.”); id.

(“[T]he Court has linked the due process check . . . only to

improper police arrangement of the circumstances

surrounding an identification.”); id. at 726–27 (“[T]he risk of

police rigging was the very danger to which the Court

responded in Wade when it recognized a defendant’s right to

counsel at postindictment, police-organized identification

procedures.”); id. at 727 (“To illustrate the improper

43

suggestion it was concerned about, the Court pointed to

police-designed lineups . . . .”). The Court also justified its

rule on the basis that the deterrence rationale justifying the

exclusion of an identification at trial “is inapposite in cases,

like Perry’s, in which the police engaged in no improper

conduct.” Id. at 726. Nevertheless, the Court explicitly

denied that it was creating a mens rea requirement for the

police conduct and maintained that “what triggers due process

concerns is police use of an unnecessarily suggestive

identification procedure, whether or not they intended the

arranged procedure to be suggestive.” Id. at 721 n.1. Thus,

we do not interpret Perry as requiring that the improper police

conduct be intentionally aimed at creating a suggestive

situation.

This case is distinguishable from Perry, in which the

witness had “spontaneously” walked to the window of her

apartment building and pointed to Perry “without any

inducement from the police.” Id. at 722. Here, the United

States Marshal actively placed the appellants and Anderson

together. Either the United States Marshal or the Bureau of

Prisons was responsible for ensuring that the three appellants

would not be housed with a critical witness. The failure of

either government entity to do so resulted in an impermissibly

suggestive situation.

We arrive at the question of whether Anderson’s

identification of Lewis was bolstered by sufficient indicia of

reliability despite the unduly suggestive confrontation in the

holding cell. Anderson had only a short time to view the

perpetrators’ faces at the time of the robbery — maybe 20

seconds. Critically, Anderson testified that Lewis did not

have his face covered during the robbery. Anderson appears

44

to have been paying attention because he was able to report

accurately that Lewis was wearing a gray hooded sweatshirt

and carrying a black automatic handgun.

The strength of Anderson’s identification falters upon

consideration of the third Biggers factor, the accuracy of his

prior description of the suspect. Anderson previously

described Lewis as a “black male, approximately 30, 6-feet-3,

approximately 225 pounds.” JA 563. His description of

Lewis at trial was somewhat different — a light-skinned male

with a beard. Id. at 533–35, 564. Anderson also told police

that he had seen the third perpetrator after the robbery on

Germantown Avenue, then later recanted, saying he was

mistaken. Id. at 573–75. The inconsistencies evident in

Anderson’s testimony call into question the reliability of his

identification of Lewis.

The fourth Biggers factor also warns of a risk of

misidentification because four years passed between the

robbery and Anderson’s identification of Lewis in the holding

cell. In the meantime, Anderson failed to identify Lewis in a

photo array two years after the robbery. Emanuele is once

again instructive. 51 F.3d at 1129–30. In Emanuele, like

here, the witnesses benefited from an unobstructed view of

the perpetrators during the bank robbery. The second prong

of the identification due process analysis, reliability, turned

on whether the witnesses had previously made an accurate

identification of the defendant and, therefore, had

independent grounds for making identifications at trial. Id. at

1131. Despite the witnesses’ adequate opportunity to view

the perpetrators during the crime, the first witness’s failure to

identify the defendant in a photo array prior to the suggestive

encounter undermined the reliability of her in-court

45

identification and revealed a substantial risk of

misidentification. Id. The in-court identification of the other

witness, however, was permissible because she had

previously identified the defendant in a photo array. Id.

Anderson’s previous failure to identify Lewis before seeing

him with the other appellants in the holding cell before trial

leads us to conclude that the risk of misidentification was

substantial. For that reason, Anderson’s identification of

Lewis should not have been admitted at trial.

We conclude, nonetheless, that the admission of

Anderson’s identification was harmless error. Under the

harmless error test for constitutional violations articulated in

Chapman v. California, the Government must prove “beyond

a reasonable doubt that the error complained of did not

contribute to the verdict obtained.” 386 U.S. 18, 24 (1967).

“[T]he relevant question under Chapman is not whether, in a

trial that occurred without the error, a guilty verdict would

surely have been rendered, but whether the guilty verdict

actually rendered in this trial was surely unattributable to the

error.” Virgin Islands v. Martinez, 620 F.3d 321, 337 (3d Cir.

2010) (quotation marks omitted). In deciding whether to

exercise the Court’s discretion to consider an error to be

harmless, “the controlling considerations are the length and

complexity of the record, whether the harmlessness of the

error or errors found is certain or debatable, and whether a

reversal will result in protracted, costly, and ultimately futile

proceedings in the district court.” United States v.

McLaughlin, 126 F.3d 130, 135 (3d Cir. 1997) (quotation

marks omitted), abrogated on other grounds by United States

v. Fiorelli, 133 F.3d 218 (3d Cir. 1998).

46

In light of the overwhelming evidence against Lewis in

this case, we conclude that the error was harmless and does

not compel reversal. Another eyewitness, Vasquez, was

absolutely certain about his identification of Lewis as the

third robber. Furthermore, Sheronda Gaskin testified that

Lewis was with Shavers and White at Ebony Gist’s house the

night before the robbery when a fourth man told them of a

house in Jeanette’s neighborhood that had a lot of money. JA

1430, 1441. Gaskin observed the three appellants “get

prepared to rob the house” by donning hooded sweatshirts

and masks, and “loading up their guns.” Id. at 1431. The

following morning, Lewis arrived at Gist’s home with bruises

and “was telling everybody how he got away.” Id. at 1435.

He explained to Gaskin that “they had tried to rob the house”

and that “he went out through the back.” Id. at 1436. In a

telephone conversation on November 18, 2005, White warned

Lewis that the authorities were searching for him and to

“keep a low profile.” Id. at 2136. Later in the conversation,

Lewis and Shavers discussed how Lewis had escaped after

the robbery. Id. at 2139. We are convinced that there was

ample evidence in the record of Lewis’s culpability such that

the erroneous admission of Anderson’s identification of

Lewis was harmless error beyond a reasonable doubt.

E.

Finally, White appeals the denial of his motion to

suppress Rickey’s identification of him at the police station,

in a lineup, and in court on the basis that Rickey did not have

sufficient opportunity to see White’s face at the speakeasy.

White’s challenge to Rickey’s identification is unsuccessful

because he does not explain why any of the procedures used

by law enforcement were unnecessarily suggestive. In

47

addition, Rickey’s identification at the police station is

unchallengeable under Perry because he identified White on

his own accord, without prompting by the police. See 132 S.

Ct. at 728. For these reasons, the District Court did not abuse

its discretion in admitting Rickey’s identifications of White.

V. Prison Telephone Conversations

Lewis challenges the District Court’s denial of his

pretrial motion to suppress a telephone conversation recorded

at the prison on November 15, 2005 between Lewis, who was

not imprisoned at the time, White, and others. Lewis argues

that recording the call violated his Fourth Amendment right to

be free of unreasonable searches because he was unaware that

the call would be recorded and, thus, he had a reasonable

expectation of privacy in the call.

We review the District Court’s decision to admit

evidence for an abuse of discretion. United States v. Serafini,

233 F.3d 758, 768 n.14 (3d Cir. 2000). The Fourth

Amendment protects the “right of the people to be secure in

their persons, houses, papers, and effects, against

unreasonable searches and seizures.” U.S. Const. amend. IV.

Fourth Amendment protections are not triggered unless the

state monitors an area in which the defendant has a

“constitutionally protected reasonable expectation of

privacy.” New York v. Class, 475 U.S. 106, 112 (1986).

Determining whether an individual’s expectation of privacy is

justifiable under the Fourth Amendment involves two

inquiries: “(1) whether the individual demonstrated an actual

or subjective expectation of privacy in the subject of the

search or seizure; and (2) whether this expectation of privacy

is objectively justifiable under the circumstances.” Free

48

Speech Coal., Inc. v. Att’y Gen., 677 F.3d 519, 543 (3d Cir.

2012).

Under the specific circumstances presented in this

case, Lewis did not have an objectively reasonable

expectation of privacy in his telephone conversation with

White. Lewis knew where White was incarcerated when

White called Lewis, as he had agreed to send Shavers and

White mail there. Furthermore, Lewis was previously

incarcerated at the same prison. Thus, he would have

received a handbook alerting him that all telephone calls were

recorded and been exposed to a document hanging in the

common areas that notified prisoners that their calls might be

monitored and recorded. In these circumstances, Lewis

should have known that all outgoing prisoner telephone calls

were monitored and recorded. See United States v. Sababu,

891 F.2d 1308, 1329 (7th Cir. 1989) (holding that a non-

prisoner had no reasonable expectation of privacy when

speaking to a prisoner on the telephone because, as a frequent

visitor to the prison, she was “well aware of the strict security

measures in place” and that the Code of Federal Regulations

puts the public on notice that prison officials are authorized to

monitor prisoners’ telephone calls); United States v. Harrison,

986 F. Supp. 280, 281–82 (M.D. Pa. 1997) (observing that the

defendant had no subjective expectation of privacy because it

was clear from the content of the telephone calls and his

guarded language that he knew he was speaking with a

prisoner and that the calls would be monitored). We hold,

therefore, that Lewis’s Fourth Amendment challenge to the

admission of the telephone call transcript is unavailing. 7

7

The Government devotes much of its brief to

arguing that the recording of Lewis’s conversation was not a

49

VI. The Post Office Robbery Evidence

All three appellants assert that the District Court erred

in permitting the Government to introduce evidence that they

were involved in the uncharged armed robbery of a post

office. Although the Government had originally moved to

admit more details about the post office robbery investigation,

the evidence elicited at trial was essentially limited to the

following facts. Approximately twelve hours prior to the

speakeasy robbery, at 6:30 p.m. on November 7, 2005, a post

office was robbed in West Philadelphia. Postal Inspector

Kathleen Brady testified that on November 17, 2005, postal

inspectors executed a search warrant of Gist’s house based on

information that the post office robbery had been committed

by people staying there. Investigators also began inquiries

violation of Title III of the Omnibus Crime Control and Safe

Streets Act of 1968, which prohibits the interception of “any

wire, oral, or electronic communication,” including telephone

conversations. 18 U.S.C. § 2511(1). We need not delve into

that topic, however, because Lewis does not claim a violation

of that Act.

White also states in his brief, without argument, that he

joins Lewis’s challenge to the prison telephone call. White’s

challenge is unconvincing, however, as he engaged in other

calls from the prison prior to the November 15 call during

which he was specifically warned that prison telephone calls

might be monitored and recorded. JA 2114. For the reasons

stated above, prisoners do not have a reasonable expectation

of privacy when speaking on a prison telephone, especially

where a warning has been given.

50

into the people who spent time at Gist’s house, including

Lewis, Shavers, and White. The search produced a cellular

phone belonging to a customer from the speakeasy. Postal

inspectors also subpoenaed Shavers’s and White’s recorded

prison telephone calls and visitor logs in connection with the

investigation. 8 The Government also offered Gist’s testimony

that, on the night of the post office robbery, four individuals

ran into her house and hid in her back room from a helicopter

that was scanning the area. The next morning, four men,

including Lewis, were in her house and one of the men (not

Lewis) was counting money. Gist testified that a neighbor

stopped by later and told “Snoop” (Kenneth Ford) that he was

a suspect in the post office robbery.

We review the District Court’s decision to admit

evidence for abuse of discretion, meaning that “we must

uphold the District Court unless its ruling was arbitrary or

irrational.” United States v. Green, 617 F.3d 233, 239, 251–

52 (3d Cir. 2010) (quotation marks omitted). Federal Rule of

Evidence 404(b) limits the admission of evidence of other

crimes, wrongs, or acts “to prove a person’s character in order

to show that on a particular occasion the person acted in

accordance with the character.” Such evidence “may be

admissible for another purpose, such as proving motive,

opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident.” Id. The “threshold

inquiry a court must make before admitting similar acts

8

White claims that the transcripts of prison telephone

calls that were admitted into evidence in this case implicated

the three appellants in the post office robbery. There is no

mention of the post office robbery in those transcripts,

however.

51

evidence under Rule 404(b) is whether that evidence is

probative of a material issue other than character.”

Huddleston v. United States, 485 U.S. 681, 686 (1988). We

have long considered Rule 404(b) to be inclusionary such that

“evidence of other wrongful acts was admissible so long as it

was not introduced solely to prove criminal propensity.”

Green, 617 F.3d at 244.

For similar act evidence to come in under Rule 404(b),

there must be “(1) a proper evidentiary purpose; (2) relevance

under Rule 402; (3) a weighing of the probative value of the

evidence against its prejudicial effect under Rule 403; and (4)

a limiting instruction concerning the purpose for which the

evidence may be used.” United States v. Butch, 256 F.3d

171, 175 (3d Cir. 2001). Evidence is relevant if “(a) it has

any tendency to make a fact more or less probable than it

would be without the evidence; and (b) the fact is of

consequence in determining the action.” Fed. R. Evid. 401.

Pursuant to Federal Rule of Evidence 403, we must also

consider whether the probative value of the evidence is

“substantially outweighed by a danger of . . . unfair prejudice,

confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.”

Applying this framework, we conclude that the District

Court did not abuse its discretion in allowing in the limited

evidence concerning the post office robbery. First, evidence

of the ongoing investigation into the post office robbery was

relevant and was offered for proper evidentiary purposes.

Inspector Brady’s testimony about the post office robbery

investigation was critical to the witness tampering allegations

because the Government was attempting to prove that

Shavers and White were being investigated by federal

52

authorities and that a federal criminal proceeding was

foreseeable. 9 Under Rule 404(b), it is permissible to admit

evidence that shows the defendant’s knowledge of a key fact.

Inspector Brady’s testimony was also necessary to admit

another critical piece of evidence against Lewis — the

presence of both Lewis and a speakeasy customer’s cell

phone at Gist’s residence the day after the speakeasy robbery.

Finally, the evidence explained the references to a federal

investigation in the prison telephone calls and why Shavers,

White, and Lewis were being investigated. Providing

background information of that sort is a proper evidentiary

purpose. See Green, 617 F.3d at 250 (“Here, evidence of

Green’s threat was admissible as background information

which completed the story of the crime. It explained why

Green was under investigation, why Stahl agreed to serve as

an informant, and the references to A.G. in their

conversations.”).

Second, to the extent that the jury could have gleaned

any inference that the appellants were involved in the post

office robbery due to their association with Gist, we agree

with the District Court that the probative value of the disputed

evidence was not “substantially outweighed by the danger of .

. . unfair prejudice, confusing the issues, misleading the jury,

undue delay, wasting time, or needlessly presenting

cumulative evidence.” Fed. R. Evid. 403. The evidence did

not speak to the appellants’ character because there was no

proof that the appellants had committed the post office

9

The fact that we ultimately hold that the Government

did not meet its burden on the witness tampering count does

not change our view that the admission of this evidence at

trial had a proper purpose.

53

robbery. Proof that they were being investigated alone is

substantially less prejudicial than evidence of the commission

of a crime. The possible prejudicial effect of the post office

robbery evidence, therefore, did not substantially outweigh its

probative value. See United States v. Jones, 566 F.3d 353,

365 (3d Cir. 2009) (holding that evidence of violent crimes

and other illegal activities of defendant’s gang was not unduly

prejudicial because defendant “was not directly implicated”

and the evidence was probative of elements of the crimes that

the defendant was charged with).

The appellants claim that the disputed evidence here is

analogous to the erroneously admitted evidence in United

States v. Murray, 103 F.3d 310 (3d Cir. 1997). In that case,

we held that evidence that the defendant had committed an

uncharged murder should not have been presented to the jury

because it was extremely prejudicial and irrelevant. Id. at

317–18. The prejudicial nature of the evidence in this case,

where there is merely the possibility that the appellants or

their associates were involved in another crime, is far less

than in Murray, which involved evidence that the defendant

had actually committed another murder. Moreover, unlike

the evidence in Murray, the evidence in this case was relevant

and was offered for a proper evidentiary purpose.

Finally, the District Court’s failure to give a limiting

instruction addressing this evidence was not reversible error

because there is no indication in the record that defense

counsel requested one. See Ansell v. Green Acres

Contracting Co., Inc., 347 F.3d 515, 526 (3d Cir. 2003)

(holding that the defendant had waived any challenge to the

district court’s failure to give a limiting instruction addressing

Rule 404(b) evidence by failing to request one at trial or raise

54

the issue on appeal); United States v. Multi-Mgmt., Inc., 743

F.2d 1359, 1364 (9th Cir. 1984) (“It is well-settled that where

no limiting instruction is requested concerning evidence of

other criminal acts, the failure of the trial court to give such

an instruction sua sponte is not reversible error.”). Even if

there had been such a request, however, the lack of a limiting

instruction would be harmless error, given the extent to which

the probative value of the disputed evidence outweighs its

negligible prejudicial effect. We will, therefore, affirm the

District Court’s admission of the post office robbery

evidence.

VII. Statement by Witness Sheronda Gaskin

The three appellants next challenge the District Court’s

refusal to declare a mistrial after an outburst by Government

witness Sheronda Gaskin. On redirect, Gaskin declared:

Having me testify right here, like I’m afraid for

my life. By me saying what I said in this

courtroom today, there’s no way possible I can

stay in Philadelphia. Like that’s a known fact

right there. That’s a given, like. For a fact, I

know G Bucks [Shavers] is a killer.

JA 1514. After the outburst, the District Court excused the

jury for lunch. When they returned, the Court issued a

cautionary jury instruction, stating:

I am directing, ladies and gentlemen, that you

are to disregard the answer and the question

posed to the witness prior to your recess. You

are not to consider the response or the question

55

in any form or way as it relates to any one of

these three defendants. It has no relationship to

anything that is charged in this superseding

indictment in this case . . . . I further instruct

you that no one can mention that testimony or

that question during any portion or course of the

deliberations in this case.

Id. at 1524–25. The Court also reiterated in its jury

instruction at the end of the trial that the jury must disregard

evidence that had been stricken by the Court. Id. at 1981.

Shavers moved for a mistrial, which the Court denied

because, although the “prejudice [was] significant,” it did not

deprive Shavers of the right to a fair trial in consideration of

the totality of the evidence. Id. at 1518, 1521–22, 2040–41.

We review the denial of a motion for a mistrial based

on the admission of allegedly prejudicial evidence for abuse

of discretion. United States v. Lore, 430 F.3d 190, 207 (3d

Cir. 2005). We are concerned with whether the statement

was so prejudicial that the appellants were deprived of the

fundamental right to a fair trial. United States v. Xavier, 2

F.3d 1281, 1285 (3d Cir. 1993). Three factors guide our

analysis of Gaskin’s inappropriate outburst: “(1) whether

[the] remarks were pronounced and persistent, creating a

likelihood they would mislead and prejudice the jury; (2) the

strength of the other evidence; and (3) curative action taken

by the district court.” Lore, 430 F.3d at 207.

In Lore, a prosecution for embezzlement, a witness

blurted out, “You have to ask [one of the defendants]. She

handled the checkbook.” Id. at 207. We held that a curative

instruction was sufficient because the statement was dwarfed

56

by the witness’s five days of testimony, and thus was not

pronounced or persistent, and there was strong evidence of

the defendant’s culpability. Id. Similarly, in United States v.

Riley, a witness twice mentioned that he had met the

defendant in a work release program, which impermissibly

informed the jury that the defendant had been convicted of a

previous crime. 621 F.3d 312, 336 (3d Cir. 2010). We held

that the remarks were not pronounced or persistent because

they were two remarks in the course of three days of

testimony in a five-week trial. Id. Moreover, there was

significant evidence of guilt such that “there [was] no

question that the jury did not solely rely upon the fact that

[defendant] was on work release.” Id. at 337. Finally, the

Court gave a curative instruction in the jury instructions at the

end of the trial. Id.

The context of the remarks and the other Lore factors

drive the analysis, rather than the number of prejudicial

remarks. We have declared a mistrial on the basis of solitary

prejudicial remarks. In United States v. Carney, the

defendant’s coconspirator, John Blandford, testified that the

defendant, who was on trial for a fraud-related conspiracy,

had “tried to kill myself and my two children.” 461 F.2d 465,

466 (3d Cir. 1972). The District Court ordered the testimony

stricken and instructed the jury not to consider the question or

answer. We vacated the conviction, holding that the only

remedy was a mistrial because the prejudice was “obvious”

and Blandford’s testimony was essential to the Government’s

case. Id. at 466–68. Other factors relevant to our

determination were the lack of overwhelming evidence of

guilt, the statement’s lack of impeachment value or relevance,

the fact that the prosecutor elicited the testimony by asking an

57

“obviously risky question” on direct examination, and the

defendant’s prompt motion for a mistrial. Id. at 468.

In United States v. Gray, the defendant, who was

charged with bank robbery, testified and volunteered that he

had previously been “locked up waiting trial on my wife’s

death” and that his “wife was killed.” 468 F.2d 257, 258 (3d

Cir. 1972) (en banc). In response, the prosecutor asked: “You

killed her, didn’t you?” Id. at 259. The District Court

sustained the defense’s objection to the question and

instructed the jury to ignore the testimony and strike it from

their minds. Id. We held that a mistrial should have been

granted because the prosecutor’s question was “grievous plain

error” and “[n]o cautionary instruction could purge the jury’s

mind and memory of the devastating impact of the question.”

Id.

Gaskin’s statement, although inappropriate, does not

rise to the level that would compel a mistrial. Her statement,

a single, isolated comment in the course of a six-day trial, was

not as “pronounced and persistent” as the remarks in Carney

and Gray. The statements in Carney and Gray were much

more specific than in this case because they identified specific

incidents and victims. Additionally, Gaskin’s testimony had

already been undermined because she admitted to having

committed perjury before the grand jury. Thus, the first Lore

factor does not persuade us that a mistrial was appropriate.

The second Lore factor also counsels against declaring

a mistrial. There was considerable evidence of Shavers’s

culpability including, inter alia, his arrest within minutes and

blocks of the robbery, which took place at 5:30 a.m., an

unusual hour to be running down the street; Vasquez’s and

58

Anderson’s identifications of Shavers immediately following

the robbery and later in court; Shavers’s possession upon

arrest of shotgun shells combined with witnesses’ testimony

that one of the men at the robbery was carrying a shotgun;

Gaskin’s testimony that Shavers and White were discussing a

house with lots of money the night before the robbery and

then left Gist’s house shortly before the robbery armed with

firearms; and the prison telephone calls in which Shavers

discussed being present at Jeanette’s during the robbery. The

substantial evidence of Shavers’s guilt in this case far

overshadows Gaskin’s comment.

With respect to the third Lore factor, the District Court

gave a strong curative instruction following Gaskin’s

comment and then another in the final instructions. “A jury is

ordinarily assumed to follow clear instructions from the trial

judge.” Carney, 461 F.2d at 467. While we acknowledge the

prejudicial nature of Gaskin’s outburst, given the evidence in

the case and the curative instructions, we are confident that

the statement was not so prejudicial as to deprive Shavers of a

fair trial. The District Court did not abuse its discretion in

denying Shavers’s motion for a mistrial. 10

VIII. The Confrontation Clause

White maintains that the District Court violated his

right to confrontation by admitting Gist’s testimony about a

10

White and Lewis both join this claim for relief but

do not explain how Gaskin’s statement was prejudicial with

respect to them. Nonetheless, we are satisfied that any

minimal prejudice that Gaskin’s statement had on White or

Lewis was easily cured by the Court’s two instructions.

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statement that Lewis made to her that implicated White and

Shavers in the robbery. Gist testified that Lewis and others

used to spend time at her home. On the morning of the

speakeasy robbery, she came downstairs and found Lewis and

three other men in her home. One of the men, not Lewis, was

counting money. Lewis related to Gist that he had injured his

forehead while hiding under a children’s pool the night

before. When asked whether Lewis divulged what he had

been doing that night, Gist testified that Lewis “didn’t say

exactly what he was doing, but he just stated that F [referring

to White] and Butts [referring to Shavers] had got locked up.

They had got caught trying to rob, I think a speakeasy or

something.” JA 1308. White argues that Gist’s testimony

about Lewis’s statement violated his right to confrontation

under the Sixth Amendment.

Because the appellants did not raise a Confrontation

Clause objection to this evidence in the District Court, it is

reviewed for plain error. United States v. Richards, 241 F.3d

335, 341–42 (3d Cir. 2001). To satisfy the plain error

standard, the defendant must prove that there was (1) an error;

(2) that is plain, i.e., obvious under the law at the time of

review; and (3) that “affect[s] substantial rights.” Johnson v.

United States, 520 U.S. 461, 467–68 (1997). If those

conditions are met, we may exercise our discretion to order

correction, but only if the error “seriously affect[s] the

fairness, integrity, or public reputation of judicial

proceedings.” Id. at 467. An error is considered to have

affected substantial rights when it “‘affected the outcome of

the district court proceedings.’” United States v. Vazquez-

Lebron, 582 F.3d 443, 446 (3d Cir. 2009) (quoting United

States v. Olano, 507 U.S. 725, 734 (1993)).

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The Confrontation Clause of the Sixth Amendment

provides that “[i]n all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the witnesses against

him.” U.S. Const. amend. VI. In the wake of the Supreme

Court’s decisions in Crawford v. Washington, 541 U.S. 36

(2004) and Davis v. Washington, 547 U.S. 813 (2006), we

have held that a witness’s statement implicates the

Confrontation Clause only if it is testimonial. United States

v. Berrios, 676 F.3d 118, 126 (3d Cir. 2012). Under Bruton

v. United States, using a non-testifying codefendant’s

confession violates a defendant’s rights under the

Confrontation Clause. 391 U.S. 123, 127–28 (1968).

Critically, we have asserted that, “because Bruton is no more

than a by-product of the Confrontation Clause, the Court’s

holdings in Davis and Crawford likewise limit Bruton to

testimonial statements.” Berrios, 676 F.3d at 128.

In view of our holding in Berrios, we conclude that

Gist’s testimony did not contravene White’s Confrontation

Clause rights. In Berrios, we considered a conversation

between Reinaldo Berrios and one of his codefendants, Troy

Moore, that was recorded as part of an unrelated

investigation. Id. at 124. The conversation incriminated

Berrios, Moore, and a third codefendant, who challenged

admission of the recorded conversation on Confrontation

Clause grounds. Id. at 125. We held that the recorded

statements bore “none of the characteristics exhibited by

testimonial statements” because there was no evidence that

Berrios and Moore intended to incriminate their

codefendants, that they were aware that their conversation

was being recorded, or that “their conversation consisted of

anything but ‘casual remark[s] to an acquaintance.’” Id. at

128 (quoting Crawford, 541 U.S. at 51). The attributes of a

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testimonial statement are lacking here as well. There is no

indication or argument that Lewis intended to incriminate

Shavers and White or anticipated that Gist would be called to

testify against them. Nor is there any suggestion that the

conversation amounted to more than simply a “casual remark

to an acquaintance.” Id. Finally, Gist’s casual elicitation of

Lewis’s remarks bears no resemblance to the abusive

governmental investigation tactics that the Sixth Amendment

seeks to prevent. 11 Thus, we are satisfied that the admission

of Lewis’s statements does not compel reversal of the

appellants’ convictions.

IX. The Mandatory Minimum Sentences Under 18 U.S.C.

§ 924

We turn to the argument, joined by all three appellants,

that the District Court’s imposition of the seven-year

mandatory minimum sentence pursuant to 18 U.S.C.

§ 924(c)(1)(A)(ii) was unconstitutional without a finding by

the jury that the appellants brandished firearms during the

robbery. While the appellants acknowledge that Supreme

Court precedent forecloses relief on this claim, they raise the

issue to preserve it for future review.

We exercise plenary review over allegations of

constitutional violations in sentencing. United States v.

Lennon, 372 F.3d 535, 538 (3d Cir. 2004). The appellants

were convicted under 18 U.S.C. § 924(c)(1)(A), which

11

Shavers originally made this argument as well but

has since submitted a letter to the Court pursuant to Federal

Rule of Appellate Procedure 28(j) stating that he no longer

seeks relief on this ground in light of our decision in Berrios.

62

imposes a mandatory minimum sentence of seven years in

addition to the punishment for the underlying crime on a

perpetrator who brandishes a firearm “during and in relation

to” any federal crime of violence. The verdict form tasked

the jury with deciding whether the appellants had used or

carried firearms during and in relation to the robbery. The

jury found in the affirmative. At sentencing, the District

Court found by a preponderance of the evidence that the

appellants had not only carried, but brandished firearms

during the robbery. Accordingly, the Court included the

seven-year mandatory minimum set forth in

§ 924(c)(1)(A)(ii) in the appellants’ sentences. The

appellants argue that the seven-year minimum sentence

cannot be constitutionally imposed without a finding by the

jury beyond a reasonable doubt that they brandished firearms,

and that the lower burden of proof applied by the District

Court violated their right to due process under the Fifth

Amendment and their right to a jury under the Sixth

Amendment.

In support of their argument, the appellants rely on

Apprendi v. New Jersey, in which the Supreme Court held

that “[o]ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.” 530 U.S. 466, 490 (2000). The

Supreme Court has held, however, that “brandishing” a

firearm is a sentencing factor and not an element of the crime

described in 18 U.S.C. § 924(c)(1)(A). Allowing the judge to

find that factor by a preponderance of the evidence does not

violate a defendant’s Fifth and Sixth Amendment rights.

Harris v. United States, 536 U.S. 545, 556 (2002). The

Supreme Court in Harris v. United States explained that the

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“brandishing” provision does not violate the Apprendi rule

because the mandatory minimum provisions in § 924 do not

extend a defendant’s sentence beyond the statutory maximum

sentence, which is “well in excess of seven years.” Id. at 554,

567–68; see also United States v. Shabazz, 564 F.3d 280,

288–89 (3d Cir. 2009).

Harris remains good law and has been subsequently

relied upon and cited by the Supreme Court and this Court.

See, e.g., United States v. O’Brien, 130 S. Ct. 2169, 2179–80

(2010); United States v. Tidwell, 521 F.3d 236, 245 (3d Cir.

2008). 12 Given that the Supreme Court squarely addressed

12

Shavers argues that the Supreme Court’s opinion in

Cunningham v. California, undermines its reliance in Harris

on the traditional role of the sentencing court in fact-finding.

549 U.S. 270, 289, 293 (2007). In Cunningham, the Court

reversed the California Supreme Court’s holding that

California’s determinate sentencing law did not contravene

the Sixth Amendment. The Court rejected the California

court’s pronouncement that the law “simply authorize[s] a

sentencing court to engage in the type of factfinding that

traditionally has been incident to the judge’s selection of an

appropriate sentence within a statutorily prescribed

sentencing range.” Id. at 289. Cunningham is distinguishable

from Harris, however, because the California statute provided

three levels of fixed sentence terms at six, twelve, and sixteen

years of imprisonment. Id. at 275. The California statute

violated Apprendi because it allowed the court, by finding

additional facts by a preponderance of the evidence, to

enhance a sentence into a tier higher than that justified by the

jury’s finding. To the contrary, the sentencing enhancements

in § 924 do not dictate a sentence above the maximum

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this issue in Harris and held that brandishing is a sentencing

factor to be found by the judge, the appellants’ argument does

not provide a basis for reversal.

X. Shavers’s Term of Supervised Release

Finally, Shavers contends that his eight-year term of

supervised release exceeds the statutory maximum of five

years for a violation of 18 U.S.C. § 924(c)(1)(A)(ii). For a

felony conviction pursuant to § 924(c), which is a Class A

felony, the maximum length of supervised release is five

years. 18 U.S.C. §§ 3559(a)(1), 3583(b)(1); United States v.

Cudjoe, 634 F.3d 1163, 1166 (10th Cir. 2011); United States

v. Todd, 521 F.3d 891, 895 (8th Cir. 2008). Shavers is

correct, therefore, that his sentence of eight years of

supervised release exceeds the statutory maximum term of

supervised release for the offense of conviction. Because that

constitutes plain error, we will vacate Shavers’s sentence and

remand to the District Court for resentencing. See United

States v. Cole, 567 F.3d 110, 118 (3d Cir. 2009) (“Our

precedent is clear that a plainly erroneous condition of

supervised release always affects a defendant’s substantial

rights.”). 13

sentence for the offense as found by the jury. The Court dealt

with a different statutory structure in Cunningham and,

therefore, that case does not provide support for overruling

Harris.

13

Although Lewis joins this argument, his term of

supervised release was five years and he has no basis for this

claim.

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XI.

In accordance with the foregoing, we will vacate

Shavers’s eight-year term of supervised release and Shavers’s

and White’s witness tampering convictions. We will uphold

the convictions of all three appellants on all other counts and

affirm Lewis’s sentence. We will remand for the

resentencing of Shavers and White in accordance with this

opinion.

66