                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-17-2008

USA v. Sease
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4435




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"USA v. Sease" (2008). 2008 Decisions. Paper 1729.
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                                                                 NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                                      No. 05-4435


                           UNITED STATES OF AMERICA

                                           v.

                                  REGINALD SEASE,
                                             Appellant


                    On Appeal from the United States District Court
                              for the District of New Jersey
                    (District Court Criminal Action No. 04-cr-894)
                     District Judge: Honorable Freda L. Wolfson


                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 14, 2007

    Before: SLOVITER and AMBRO, Circuit Judges, and POLLAK,* District Judge

                                (Filed: January 17, 2008)


                                        OPINION
                                         ____
POLLAK, District Judge

      Defendant-appellant Reginald Sease was charged in a superseding indictment with

one count of conspiracy to rob the Minolta National Bank, in violation of 18 U.S.C.



      *
          Hon. Louis H. Pollak, Senior Judge, United States District Court for the Eastern
District of Pennsylvania, sitting by designation.
§ 371, one count of bank robbery, in violation of 18 U.S.C. § 2113, and one count of

serving as an accessory after the fact of the robbery, in violation of 18 U.S.C. § 3.

Pursuant to a jury trial, Sease was convicted of conspiracy but acquitted of robbery; the

jury was instructed not to deliberate on the accessory charge if it convicted on either of

the preceding counts. Sease timely appealed the conspiracy conviction, arguing that the

jury instruction erroneously failed to clarify the nature of the conspiracy for which he was

charged and misstated the number of overt acts listed in the conspiracy count. We reject

these contentions and affirm the District Court’s judgment.

                                             I.

       Because we write for the parties, we summarize only those facts most significant

to our determination. William Brantley, the government’s central witness at trial, robbed

the Minolta National Bank. Sease drove Brantley to the robbery and waited in the car

while the robbery was being committed. Brantley entered the bank and held a teller at

gunpoint. He took a sum of cash, but also, inadvertently, a “dye pack.” As Brantley was

fleeing to the car, the dye pack exploded, emitting tear gas and soaking the cash with red

ink. Brantley leapt into the car, and Sease drove away.

       After his arrest, having waived his Miranda rights, Sease said to the police that he

had believed that he was driving Brantley to rob not a bank, but, rather, “some

Mexicans.” The government referred to this confession in its opening statement at trial,

describing it as “creatively false.” The confession was admitted into evidence, but neither



                                              2
party referred to it again until Sease’s counsel addressed it in his closing argument.

       The District Court charged the jury prior to the closing arguments. The instruction

did not allude to Sease’s statement to police that he had believed Brantley to be robbing

“some Mexicans,” or otherwise address the possibility that Sease had imagined himself to

be taking part in a crime other than bank robbery. The charge made clear, however, that a

single conspiracy was at issue. Specifically, the charge stated, in language that closely

parallels that of the indictment, that the conspiracy count against Sease was that he “did

knowingly and wilfully conspire and agree with William Brantley, and others, to rob the

Minolta National Bank.” 1 In going on to describe the elements of conspiracy, the charge

consistently referred to the count against Sease as “the,” rather than “a,” conspiracy.

       However, the jury charge misstated the number of overt acts in the conspiracy

count. The original indictment listed nine acts committed in furtherance of the

conspiracy, any one of which would have established the “overt act” requirement of 18

U.S.C. § 371. The superseding indictment listed only six overt acts. The jury instruction




       1
           The superseding indictment stated that:

                [T]he defendant, Reginald Sease, did knowingly and wilfully conspire and
                agree with William Brantley and others to knowingly and willfully, by force
                and violence, and by intimidation, take from the person and presence of
                employees of the Minolta National Bank, Bridgeton, New Jersey, money
                belonging to, and in the care, custody, control, management and possession of
                Minolta National Bank . . . .

Superseding Indictment ¶ 2.

                                               3
mistakenly stated: “You will see in Count 1 of the indictment that nine overt acts are

alleged.” The court’s mistake seems to have gone unnoticed by counsel, because neither

the government nor the defense requested a correction.

                                              II.

       As we noted above, the jury found Sease guilty of conspiracy to rob the bank, but

acquitted him of bank robbery.2 On appeal, Sease contends that the District Court’s

charge was flawed in two respects. First, Sease argues that, in light of his pretrial

confession, the charge failed to make clear that he could only be found guilty of the

conspiracy alleged in the indictment, conspiracy to rob the Minolta National Bank, and

not some other conspiracy. Second, he contends that his conviction is tainted because of

the District Court’s misstatement as to the number of overt acts alleged in the indictment.

       Because Sease failed to raise either of these arguments before the District Court,

we review for plain error. See United States v. Williams, 464 F.3d 443, 445

(3d Cir. 2006). So constrained, this appellate court may only set the verdict aside if it

finds an error that is plain and that affected “substantial rights” and “‘the fairness,

integrity, or public reputation of judicial proceedings.’” Id. (quoting U.S. v. Vazquez,

271 F.3d 93, 99 (3d Cir. 2001)).



       2
         Sease’s challenge to his conviction does not rest on a contention that the verdicts
were inconsistent. “Where there has been an inconsistent verdict, the criminal defendant is
protected against jury irrationality and error by a review of the sufficiency of the evidence.”
United States v. Vastola, 989 F.2d 1318, 1331 (3d Cir. 1993). Sease is not contesting the
sufficiency of the evidence underlying his conviction.

                                               4
                                              i.

       We do not find plain error in the charge’s omission of a reference to Sease’s

confession. A defendant is entitled to a jury instruction “‘as to any recognized defense

for which there exists evidence sufficient for a reasonable jury to find in his favor.’”

Government of the Virgin Islands v. Fonseca, 274 F.3d 760, 766 (3d Cir. 2001) (quoting

Virgin Islands v. Isaac, 50 F.3d 1175, 1180 (3d Cir.1995) (internal quotation omitted)).

On appeal, Sease articulates such a defense: If the jury was attentive to Sease’s

confession, it is conceivable that the conspiracy it found him guilty of was a conspiracy to

rob “some Mexicans” — not the conspiracy to rob a bank as charged in the indictment.

And there is the alternate possibility that some jurors, in voting to convict, could have

found him guilty of conspiring to rob the bank, while other jurors, in voting to convict,

could have had in mind a conspiracy to rob “some Mexicans” — a jury verdict scenario

that would contravene the requirement that a verdict be unanimous.

       We find no plain error, however, in the District Court’s conspiracy charge. Indeed,

we find no error at all. The language of the instruction makes clear that the conspiracy

count against Sease was that he “did knowingly and wilfully conspire and agree with

William Brantley, and others, to rob the Minolta National Bank,” and is unambiguous in

referring to a single, discrete conspiracy. Thus the instruction did not, by its terms, leave

jurors at liberty to find Sease culpable for a conspiracy other than the one alleged in the



                                              5
indictment.




                                              ii.

       We further hold that the jury charge’s misstatement of the number of overt acts

alleged in the indictment does not warrant reversal. When a court reviews for plain error,

“only those errors that ‘undermine the fundamental fairness of the trial and contribute to a

miscarriage of justice’ will be reversed.” Fonseca, 274 F.3d at 765 (quoting Virgin

Islands v. Smith, 949 F.2d 677, 681 (3d Cir. 1991)). Here, despite the District Court’s

misstatement, the jury was presented with a superseding indictment listing only six events

that could satisfy the “overt act” requirement of § 371. Neither the District Court nor the

government told the jury that the “overt act” requirement could be satisfied by some act

other than those listed in the superseding indictment. Furthermore, the District Court

made it clear that the jury must unanimously find that a specific overt act was committed.

Considering “the totality of the instructions,” id. at 767 (quoting United States v. Coyle,

63 F.3d 1239, 1245 (3d Cir.1995)), we conclude that the misstatement did not “undermine

the fundamental fairness of the trial” or “contribute to a miscarriage of justice.” Id. at

765.

       Accordingly, we will affirm the District Court’s judgment.

       ___________________




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