                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-7-1994

United States of America v. Green
Precedential or Non-Precedential:

Docket 93-1605




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      UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                             No. 93-1605


                    UNITED STATES OF AMERICA

                                  v.

                              MARK GREEN
                          a/k/a MARK WALLACE

                             MARK GREEN,
                                           Appellant



         On Appeal from the United States District Court
            for the Eastern District of Pennsylvania
                 (D.C. Criminal No. 92-00649-01)



                    Argued:     March 28, 1994

                Before: SLOVITER, Chief Judge,
               HUTCHINSON and ROTH Circuit Judges

                     (File: June 7, l994       )


James N. Gross (Argued)
Philadelphia, PA 19107

          Counsel for Appellant

Michael R. Stiles
  United States Attorney
Walter S. Batty, Jr.
Michael P. Doss (Argued)
  Assistant United States Attorneys
Philadelphia, PA 19106

          Counsel for Appellee




                                  1
                         OPINION OF THE COURT


SLOVITER, Chief Judge.
           Appellant Mark Green was the subject of a nine-count

superseding indictment.    He pled guilty to seven counts of fraud-

related charges, but proceeded to a trial before a jury on two

counts, one charging him with making threats against a federal

officer and the other charging him with making threats against

the federal officer's family.    He was found guilty on both

charges.   He appeals his conviction on the two counts and his

sentence on all nine counts.    In the most significant issue

presented by this appeal, Green challenges the sufficiency of the

evidence to support his conviction for threatening the family of

a federal law enforcement officer.      We have jurisdiction under 28

U.S.C. § 1291 (1988).

                                  I.

           In early 1992, United States Postal Inspector James

Bannan was conducting an investigation of mail and credit card

fraud involving Mark Green.     In the spring of that year, Bannan

attempted to serve a grand jury subpoena on Green, which Green

refused to accept.   During this period, there were two occasions

on which Bannan arrested Green.       On August 28, Bannan attempted

to serve a grand jury subpoena on Green's mother, Patricia Green,

at her place of employment, which she also refused to accept.




                                  2
          On August 31, Bannan, who had previously given his work

phone number to Green, received a threat on his voice mail at

that number. The message stated:
          Yeah, Bannan you better cut it the fuck out. I know
          where you live at motherfucker. Your family is in
          jeopardy, you better cut it out, or you're going to
          start a war you can't handle. I'm going to blow up
          that goddamn blue ass Camaro of yours, your [sic]
          better cut it the fuck out now. I'm coming for your
          family motherfucker.

Supp. App. at 1.   Bannan then obtained an arrest warrant for

Green, and told Green by telephone on September 4, and again on

September 17, that a warrant had issued for his arrest in

connection with the threat.   On September 14, while Bannan was on

foot, he spotted Green in a vehicle; Green slowed down, waved to

Bannan and then sped away into traffic.

          A grand jury returned a two count indictment on

November 10, 1992 charging Green with threatening a federal law

enforcement officer in violation of 18 U.S.C. § 115(a)(1)(B)

(1988); threatening the family of a federal law enforcement

officer in violation of 18 U.S.C. § 115(a)(1)(A) (1988); and

causing, aiding and abetting these threats in violation of 18

U.S.C. § 2 (1988).   On December 1, 1992, a superseding nine count

indictment was returned against Green which added to the original

two counts seven new counts of mail, bank and credit card fraud

and possession and uttering a forged security, which formed the

culmination of Bannan's investigation of Green.1   Green pled
1
 In addition to the charges relating to the threat directed at
Bannan and his family, Green was charged with two counts of bank
fraud in violation of 18 U.S.C. § 1344 (Supp. IV 1992), two
counts of credit card fraud in violation of 18 U.S.C. § 1029
(a)(2) and (a)(3) (1988), one count of mail fraud in violation of

                                3
guilty to the seven new charges, and stood trial on the two

threat counts.

          At trial, Clarence Webb, a close friend of Green,

testified that it was he who left the threatening message on

Bannan's machine at Green's request.2    Webb testified that he

knew nothing of Bannan's family when he placed the call. Although

Webb stated that Green instructed him to threaten Bannan, he made

no mention of Green's having suggested in any way that Webb

threaten Bannan's family.

          Webb also testified that one day while he and Green

were driving together with Bannan's license plate number written

on a piece of paper on the car's console, he saw Green speak with

a friend, a bearded man driving a brown Mustang.    Green told Webb

he was trying to discover where Bannan lived.    Webb testified

that Green told him afterwards that he had been unable to find

this out because the car was registered to a post office box.

          Robert Bonds, a Philadelphia police officer and friend

of Green, testified that in the fall of 1992, he met Green by

chance in downtown Philadelphia.     Green asked Bonds if he would

run a check on a certain car to determine if it was stolen and to

determine the address of the owner.     Bonds, who the government

noted is bearded, testified that he drove a brown Mustang and

that he complied with the request.    Records from the Data


18 U.S.C. § 1341 (Supp. IV 1992), and two counts of uttering and
possessing forged securities of an organization in violation of
18 U.S.C. § 513 (1988 & Supp. IV 1992).
2
 Apparently, Webb was not charged with any offense arising out of
the incident.

                                4
Processing Unit of the Philadelphia Police Department show that

Bannan's license plate number was checked on September 4, 1992.

The records indicate that Bannan's license plate was registered

to a fictitious name at a post office box.

          At the close of the government's case, Green moved for

a judgment of acquittal under Federal Rule of Criminal Procedure

29, which was denied.   During its closing argument the government

stated to the jury, "[s]o his [Bannan's] license plate number was

run three (3) days after the threat, and it was run at the

request of Mark Green."   App. at 3-101.   After Green's counsel

objected that the government had misstated the evidence, the

court instructed the jury that their recollection, and not

arguments of the parties, was controlling.

          The jury returned verdicts of guilty on both counts. In

addition to enhancements not challenged here, the district court

enhanced Green's offense level by six levels because Green had

taken steps to enforce the threat and three levels because the

victims were a government official and his family.    The district

court then sentenced Green to 84 months imprisonment, five years

of supervised release, and nine special assessments of $50.

                               II.

                                A.

                   Sufficiency of the Evidence

          Green does not contest that Webb made the recorded

threat to Bannan at Green's behest.   In other words, he concedes

that the evidence was sufficient to find him guilty as an aider

and abetter of the crime of "threaten[ing] to assault . . . a

                                5
Federal law enforcement officer . . . with intent to impede,

intimidate, or interfere with such . . . law enforcement officer

while engaged in the performance of official duties, or with

intent to retaliate against such . . . law enforcement officer on

account of the performance of official duties."   18 U.S.C.

§ 115(a)(1)(B).

          Instead, Green challenges the sufficiency of the

evidence on his conviction on the separate charge of threatening

the family of a federal officer.   This separate crime is covered

by section 115(a)(1)(A) which makes it a crime to:
          threaten[] to assault, kidnap or murder a
          member of the immediate family of . . . a
          Federal law enforcement officer [with the
          same intent set forth above].

18 U.S.C. § 115(a)(1)(A).


          As with the threat to Bannan, Green's conviction on the

count for threatening Bannan's family was based on aiding and

abetting under the federal statute, 18 U.S.C. § 2, which

provides: "(a) Whoever commits an offense against the United

States or aids, abets, counsels, commands, induces or procures

its commission, is punishable as a principal," and "(b) Whoever

willfully causes an act to be done which if directly performed by

him or another would be an offense against the United States, is

punishable as a principal."

           We have noted before that "[i]n order to establish the

offense of aiding and abetting, the Government must prove two

elements: that the substantive crime has been committed and that




                               6
the defendant knew of the crime and attempted to facilitate it."

United States v. Frorup, 963 F.2d 41, 43 (3d Cir. 1992).

          Green does not argue, nor indeed could he in light of

the tape recording, that the threat communicated by Webb did not

constitute the substantive offense falling within section

115(a)(1)(A).   Instead Green's argument appears to be that Webb

gratuitously added the reference to Bannan's family in the phone

conversation, that Green never suggested that Webb threaten

Bannan's family, and that Green neither knew of nor had any

intent to threaten Bannan's family.

          Thus the issues on which the parties focused in their

briefs, including whether it is necessary that an actor must

target a particular family member, know of the existence of the

family member, or intend the threat to be communicated to the

family member before there can be a violation of section

115(a)(1)(A), are not before us.     Instead, we must simply decide

whether there is enough evidence to find that Green aided and

abetted or willfully caused the threat Webb made on members of

Bannan's family.

          The evidence that Green aided and abetted the threat to

Bannan which served as the basis for Green's conviction under 18

U.S.C. § 115(a)(1)(B) included Webb's testimony that he made the

threat in Green's bedroom, on Green's telephone, after Green

dialed Bannan's number, and under Green's direction and

supervision.    However, he never testified that Green told him to

communicate any threat to Bannan's family, and thus it is the

conviction under 18 U.S.C. § 115(a)(1)(A) that is in question.

                                 7
           The government argues that Green set in motion the

threat Webb made to Bannan, and that his request that Webb make a

threat against a law enforcement officer also encompassed a

threat against the family of the law enforcement officer.

Whatever the scope of the doctrine of foreseeability in

connection with aiding and abetting generally, compare view set

out in Wayne R. LaFave & Austin W. Scott, Jr., Substantive

Criminal Law § 6.8(b), at 157 (1986) ("accomplice liability

extends to acts of the principal in the first degree which were a

'natural and probable consequence' of the criminal scheme the

accomplice encouraged or aided") with that at id. at 158

("'natural and probable consequences' rule of accomplice

liability . . . is inconsistent with more fundamental principles

of our system of criminal law," the view adopted by the Model

Penal Code), we believe it inapplicable here.   There is no basis

to find it foreseeable that Webb would have chosen unilaterally

to expand his threat to include Bannan's family.    More important,

Congress made a threat to a law enforcement officer's family a

separate crime than threat to the officer alone.    We cannot

assume, therefore, that Congress intended that evidence

sufficient to prove aiding and abetting or willfully causing the

threat to the officer would also automatically extend to the

separate crime of threat to the officer's family.    The rule of

lenity applicable in criminal law, if not common sense, does not

permit us to go as far as the government argues.




                               8
            For these reasons, we will reverse Green's judgment of

conviction under 18 U.S.C. § 115(a)(1)(A) for insufficient

evidence.

                                 B.

                         Evidentiary Rulings

            Green makes a number of claims that would affect his

conviction for the threat to Bannan.     He challenges the admission

of evidence concerning Bannan's prior arrests of Green, the

attempted service of subpoenas on Green and his mother, and

Bannan's testimony regarding Green's "flight" on seeing Bannan

following the issuance of the arrest warrant.      This issue does

not require extended discussion.      Bannan's prior arrests of Green

were admitted under Fed. R. Evid. 404(b).      We review the district

court's rulings on the admission of evidence for abuse of

discretion.    See United States v. Sampson, 980 F.2d 883, 886 (3d

Cir. 1992).

            Here, the evidence regarding Bannan's attempted service

of subpoenas on Green and his mother, which they avoided, and

Bannan's prior arrests of Green showed the nature of the prior

contact between Bannan and Green and were relevant to establish

Green's motive to induce him to threaten Bannan.      This evidence

was highly probative, and its admission was consistent with the

principles outlined in Huddleston v. United States, 485 U.S. 681
(1988).

            Nor did the district court abuse its discretion in

admitting the evidence of Green's flight.      We have held in the

past that "[e]vidence of a defendant's flight after a crime has

                                 9
been committed is admissible to prove his consciousness of

guilt."    United States v. Pungitore, 910 F.2d 1084, 1151 (3d Cir.

1990), cert. denied, 500 U.S. 915 (1991).    Here, there was

evidence that Bannan had told Green that a warrant for his arrest

had issued in connection with the telephone threats.     Although

Green's flight occurred some two weeks after the threats, he fled

only after spotting Bannan and acknowledging his presence.

Therefore this evidence, like Bannan's testimony regarding the

prior arrests and subpoenas, was also properly admitted under

Huddleston.

                                 C.

                     The Government's Closing

           Green argues that the prosecutor intentionally

misstated the evidence during his closing argument when he stated

that Bannan's license plate was run3 at Green's request three

days after the threats, and that the district court abused its

discretion in failing to admonish the government.

           "[T]he appropriate inquiry [in deciding whether a

prosecutor's remarks in summation require reversal] is whether

such remarks, in the context of the entire trial, were

sufficiently prejudicial to violate defendant's due process

rights."   United States v. Scarfo, 685 F.2d 842, 849 (3d Cir.
1982), cert. denied, 459 U.S. 1170 (1983).      As we recently

stated, "[t]he prosecutor is entitled to considerable latitude in

summation to argue the evidence and any reasonable inferences

3
 Presumably, to "run" a license plate means to have it checked
for identification of the owner.


                                 10
that can be drawn from that evidence."      United States v. Werme,

939 F.2d 108, 117 (3d Cir. 1991), cert. denied, 112 S. Ct. 1165

(1992).

            Rather than a misstatement of the evidence presented at

trial, the prosecutor's remarks in this case represented a

permissible argument based on reasonable inferences which the

jury could draw from the evidence at trial.      In any event, the

court sufficiently handled defendant's objection by instructing

the jury, immediately after the defense counsel's objection as

follows:
            Ladies and gentlemen -- your recollection --
            will control as to any basis, as to any
            question as to what the evidence shows or
            does not show. Counsel may make argument,
            but it is your recollection that controls.
            It's neither what the . . . Government's
            counsel or the Defendant's counsel tells you
            about the evidence.

App. at 3-101.

                             D.

                             Sentencing
            Finally, Green challenges the sentence imposed by the

district court.    Green first argues that the district court erred

in enhancing his offense level by six based on his conduct

"evidencing an intent to carry out such threat."      United States

Sentencing Commission, Guidelines Manual, §2A6.1(b)(1) (Nov.

1992).    We review the district court's findings of fact in this

regard for clear error only.      See United States v. Miele, 989

F.2d 659, 663 (3d Cir. 1993).




                                   11
          Here, as we detailed above, the evidence presented at

trial amply supported the inference that Green requested that his

friend, Officer Bonds, run a check on Bannan's license plate.

This request certainly constitutes conduct evidencing an intent

to carry out the August 31 threats to Bannan and his family. This

finding is not clearly erroneous.

          Next, Green argues that the court erred in enhancing

his offense level by three based on the intended victim's status

as a law enforcement agent.    Green argues that because the

statute under which he was charged specifically contemplates that

the victim be a law enforcement officer (or other federal

official), an enhancement based on this criterion constitutes

double punishment.

          Section 3A1.2(a) of the Sentencing Guidelines mandates

a three level increase where the victim is a government officer

or employee or a member of his or her family.    Section 2A6.1

concerning "Threatening Communications" contains no provision

enhancing the sentence where the victim is a government official

or the member of her family.    Thus, the §3A1.2 enhancement as

applied to the base offense level calculated under §2A6.1

involves no double counting.

          This conclusion is supported by the recent decision in

United States v. Pacione, 950 F.2d 1348 (7th Cir. 1991), cert.

denied, 112 S. Ct. 3054 (1992), where the court directly

addressed, and rejected, the very argument raised by Green here.

We agree with that court that because the victim's "official

status was not . . . incorporated into the guidelines section

                                 12
[2A6.1] which determined [defendant's] base offense level; the

§3A1.2 adjustment was necessary in order to reflect all the

elements of [defendant's] offense."   Id. at 1356.

                              III.

          For the reasons set forth above, the judgment of

conviction of Mark Green as to 18 U.S.C. § 115(a)(1)(B) will be

affirmed, the judgment of conviction as to 18 U.S.C.

§115(a)(1)(A) will be reversed, and the matter will be remanded

to the district court for resentencing.
________________________________




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