                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-27-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2956




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                                                                NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                            ____________________

                                    NO. 05-2956
                               _____________________

                          UNITED STATES OF AMERICA,

                                           v.

                                  IRA POTTER,
                                    Appellant
                    _______________________________________

                    On Appeal From the United States District Court
                       For the Eastern District of Pennsylvania
                              (D.C. Crim.No. 04-cr-673-2)
                      District Judge: Honorable Juan R. Sanchez
                   _________________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 February 16, 2007

                    Before: SMITH and FISHER, Circuit Judges and
                              DOWD, District Judge.*

                               (Filed: February 27, 2007)


                            __________________________

                             OPINION OF THE COURT
                           ___________________________




  *
   Honorable David D. Dowd, Jr., United States District Judge for the Northern District
of Ohio, sitting by designation.
DOWD, District Judge.


                                   I. INTRODUCTION

         Ira Potter, one of three defendants named in a three count indictment, appeals his

conviction and sentence to a term of 210 months. His conviction on all three counts

followed a jury trial during which the two co-defendants, John Ashmore and Naim

Hudgins, testified as government witnesses. The first count charged the crime of

conspiracy to commit a Hobbs Act violation; the second count charged a substantive

Hobbs Act violation; and the third count charged a violation of 18 U.S.C. § 924(c) (1) and

(2). All three counts related to a single day, February 13, 2004.

         On appeal, Potter claims, first, that the evidence was insufficient to justify

convictions on each of the counts; second, that the district court committed prejudicial

error in limiting the cross-examination of the cooperating defendant Naim Hudgins as to a

prior juvenile conviction; third, that the court’s jury instructions constituted plain error

requiring a new trial; and, fourth, that the sentencing of the defendant was flawed

requiring remand for re-sentencing in the event the court does not order a new trial on the

issue of guilt.

         We find no error and we will affirm.

                        II. SUFFICIENCY OF THE EVIDENCE

         The indictment alleged that Cousin Danny’s Exotic Haven is a bar and restaurant

located in Philadelphia and that it receives liquor and other items through interstate


                                               2
commerce. The parties entered into a stipulation as to that allegation.1

        The government offered testimony that Potter and his co-defendant, Ashmore,

had burglarized Cousin Danny’s Exotic Haven on February 6, 2004, after it had closed.

The burglary included disabling the vehicle of the owner, Daniel Freeman, after he had

closed the business. After Potter and Ashmore followed Freeman as he walked home,

they returned to his disabled vehicle, broke into the vehicle, and stole keys and paperwork

that included Freeman’s home address. They then returned to Cousin Danny’s and, using

the stolen keys,2 entered and stole cash, a computer, camera equipment, and a Smith-

Wesson firearm.3

        One week later, acting on Potter’s belief that Freeman was making a lot of

money at Cousin Danny’s and kept the bar’s proceeds in his own home, Potter and

Ashmore developed a plan to steal the bar’s monies from Freeman’s home in

Philadelphia.4 Potter, Ashmore and Hudgins watched Freeman close the bar and enter his

home. Freeman’s home was also the residence of Freeman’s sister, Eugenia Freeman, his




  1
   See App. 199. The stipulated fact follows:

              “The stipulated fact is that Cousin Danny’s Exotic Haven is a bar
       and restaurant located at 320 South 52nd Street Philadelphia, Pennsylvania
       which receives liquor and other items through interstate commerce.”
  2
   App. 496-501.
  3
   App. 207.
  4
   App. 511.
                                             3
cousin, Andrew Urey, and his cousin’s girl friend, Deborah Wormack.5

        Potter, Ashmore and Hudgins entered the home at approximately 4:30 A.M.

Armed with firearms, the defendants entered a third floor bedroom in which Urey and

Wormack were sleeping. Both were struck with a wooden baseball bat. Urey testified

that the gunmen asked for money from the bar while he was being beaten. After Urey

told the men that he did not have any money, the gunmen yelled, “How come you’re

running a bar and you don’t have any money?” At that point, Urey told them that

Freeman owned the bar. When questioned as to Freeman’s whereabouts, Urey told them

that Freeman was in a bedroom across the hall.6

        The gunmen then forced their way into Freeman’s bedroom, while brandishing

firearms, and began to beat Freeman, demanding $20,000 from the bar’s receipts.

Freeman then responded that he did not have $20,000 and one of the men responded, “I

know you’re not keeping the money at the bar anymore. I know you’re bringing it home

now. I want $20,000 or I will kill you.”7 The gunmen took two sets of keys from

  5
   App. 196.
  6
   App. 67-70.
  7
   Daniel Freeman’s testimony, at App. 217-18, was explicit:

      Q.       Now, Mr. Freeman, when these three men entered your
               bedroom, could you explain to the jury what they did, once
               they got inside?

      A.       When they got in my bedroom -- well, they kicked the door. I
               went behind my bed. They came down, pulled me up from
               behind the bed.
                                            4
Freeman, one of which was to the bar. The gunmen departed, but not before restraining

all four occupants with duct tape.8 Freeman, however, was able to free his feet. He ran

outside for help, found a police officer and reported what had happened. The police

officer reported the situation.9 Philadelphia police officers went to Cousin Danny’s Bar,



                     They dragged me up and put me in the -- near the
             floor, they duct taped my legs, duct taped my hands and duct
             taped my mouth.
                     And they started beating me with a baseball bat and
             asking me for $20,000.00. They want $20,000.00. And I
             said, but I don’t have $20,000.00. What made you think I
             have $20,000.00?
                     And the guy said to me, I know you’re not keeping the
             money at the bar any -- any more. I know you’re bringing it
             home now. I want $20,000.00 or I will kill you.
                     They proceeded to beat me with a baseball bat, hit me
             on the head, on my back, all over my body with a baseball
             bat. They wanted $20,000.00.

      Q.     Mr. Freeman, were you hit with anything else, other than a
             baseball bat?

      A.     Yes. They hit me with all the guns they had in their hands, all
             in my head, they were hitting me in the head with the guns.
             They all had -- all to my head, they wanted $20,000.00.
                    And I said, well, look, I’m not a drug dealer. Why
             should I have $20,000.00 in my house? They said, we know
             you’ve got money, we know you’ve got money. You’re not
             keeping -- you’re not keeping the money at home any longer.
                    So, I said, well, the only money I have is at the bar. If
             you want it, you have to go and get it. And they said, where
             are the keys? So, I gave them the keys. They said, where’s
             the safe key? I said, upstairs in my desk drawer.
  8
   App. 220 and 73.
  9
   App. 220-21.
                                            5
found the front door open and Hudgins and Ashmore hiding in the ladies’ restroom.10

        At trial, Freeman testified that, although the three men wore masks, he

nevertheless recognized them as customers who came to the bar to play pool.11

        Both Hudgins and Ashmore testified as government witnesses. They implicated

Potter as the person proposing the robbery.12 Ashmore described the February 6 burglary

of Cousin Danny’s Bar.13 Ashmore also indicated that once he and Hudgins were inside

the bar after the robbery at the Freeman home on February 13, 2004, he received several

telephone calls on his cell phone from Potter.14 The government produced cell phone

records of Ashmore and Potter which showed telephone calls between Ashmore’s and

Potter’s cell phones during the time period that Ashmore was inside the bar.15

        When the sufficiency of the evidence is challenged on appeal by the convicted

appellant, we review the evidence in a light most favorable to the government. Jackson v.

Virginia, 443 U.S. 307, 318-19 (1979); United States v. Dent, 149 F.3d 180, 187 (3d Cir.

1998). That evidence clearly supports the proposition that Potter was one of the three

men who entered the Freeman residence on February 13, 2004, terrorized the four


  10
    App. 290-94.
  11
    App. 220.
  12
    App. 504.
  13
    App. 496-503.
  14
    App. 528-30.
  15
    App. 558-81.
                                            6
occupants, and demanded monies that related to and constituted the proceeds of Cousin

Danny’s Bar, and then engaged as a willing participant in the effort to locate and capture

the proceeds of the business later in the morning hours of February 13, 2004 when

Hudgins and Ashmore were found by the Philadelphia Police hiding in the Bar.16

        Potter was represented at trial by retained counsel. The sole defense, unaided by

any defense testimony, was limited to identity, accompanied by the claim that the

prosecution witnesses, including the victims of the home invasion on the morning of

February 13, 2004 as well as the cooperating co-defendants Ashmore and Hudgins, were

not credible. Potter’s retained counsel did not make a Rule 29 motion for acquittal. No

argument was advanced to the effect that a Hobbs Act violation, either as to the

conspiracy charged in Count One or the substantive Hobbs Act crime charged in Count

Two, lacked the necessary interstate commerce connection. Rather, the defendant joined

with the government in a stipulation that the business of Cousin Danny’s Bar involved

interstate commerce.17

        On appeal, Potter’s appellate counsel raises the issue of sufficiency of the

evidence solely as to the requisite connection to interstate commerce, which is the

linchpin in federal jurisdiction for a Hobbs Act violation.

  16
    Count 1 of the indictment charging a conspiracy to violate the Hobbs Act by robbery
specifically alleges that Cousin Danny’s Exotic Haven is a bar and restaurant that
receives liquor and other items through interstate commerce and that the three defendants
attempted to take the proceeds from Cousin Danny’s Exotic Haven (the business) by
robbery.
  17
    See note 1, supra.
                                             7
           Potter cites the recent decision in United States v. Wang, 222 F.3d 234 (6th Cir.

2000), for the proposition that a robbery of a person in her own home, even where some

of the money taken by the defendant Wang constituted proceeds of the victim’s business,

was too attenuated to establish the Hobbs Act interstate commerce element. We do not

disagree with the outcome in Wang. However, in the case at hand, Count One, charging a

conspiracy to violate the Hobbs Act was clearly directed to the business of Cousin

Danny’s Bar. The jury certainly had sufficient evidence before it to conclude that the

goal of the conspirators, including Potter, was to obtain the monies derived from the

operation of Cousin Danny’s Bar. The facts in this case, viewed in a light most favorable

to the prosecution, do not support the attenuated connection which was the hallmark of

the Wang decision.18 Rather the purpose of the conspiracy was to obtain the monies

derived from the operation of Cousin Danny’s Bar. Count Two, the substantive Hobbs

Act crime, had as its purpose the theft of the keys to the Bar by means of a violent

robbery.

           Stated simply, the first and primary issue raised by Potter on appeal as to the

sufficiency of the evidence to support the two Hobbs Act violations is without merit.




  18
   The facts in this case are similar in concept to the decisions in United States v. Diaz,
248 F.3d 1065 (11th Cir. 2001) and United States v. Le, 256 F.3d 1229 (11th Cir. 2001).
                                               8
       III. Denial of Defense Request to Question Cooperating Defendant Hudgins
                         Concerning Prior Juvenile Adjudication

          The district court prevented Potter’s counsel from questioning the cooperating

co-defendant Naim Hudgins about a prior juvenile adjudication for receiving stolen

property. The district court followed Fed. R. Evid. 609(d).19 Hudgins was questioned

about two other criminal convictions, one for drug trafficking and one for possessing a

firearm without a license. The government supports the decision of the district court by

reference to Government of Virgin Islands v. Toto, 529 F.2d 278, 281 (3d Cir. 1976),

which held that a conviction for petit larceny was not an example of a crime that could be

the subject of cross-examination. The government argues that the crime of receiving

stolen property is similar to petit larceny. Rule 609(d) provides considerable discretion to

the district court on the issue of permitting impeachment of a witness based on a juvenile

adjudication. We elect not to make a definitive ruling on whether receiving stolen

property is the type of juvenile adjudication that, as a matter of law, should be the subject

of cross-examination because we find that, under any analysis, the refusal of the district

court to allow the impeachment, if error, would constitute harmless error on the face of


  19
    Fed.R.Evid. 609(d) provides:

                (d) Juvenile adjudications. Evidence of juvenile adjudications is
         generally not admissible under this rule. The court may, however, in a
         criminal case allow evidence of a juvenile adjudication of a witness other
         than the accused if conviction of the offense would be admissible to attack
         the credibility of an adult and the court is satisfied that admission in
         evidence is necessary for a fair determination of the issue of guilt or
         innocence.
                                              9
this record under Fed. R. Crim. P. 52(a).

                         IV. The Challenged Jury Instruction

        As earlier indicated, both Potter and the Government stipulated that the business

of Cousin Danny’s Bar involved interstate commerce. Against that background, the

court’s jury instructions contain the following references to the interstate commerce that

underpins Hobbs Act violations.

             (1) The defendant, Ira Potter, is accused of participating in a
        conspiracy to interfere with interstate commerce by robbery in violation
        of Section (sic) 18 U.S.C. 1951(a). (App. 667, lines 11-14).

              (2) The criminal conspiracy to commit robbery, that is, the
        agreement is an independent offense. It is separate and distinct from the
        actual violation of any specific federal laws which the law refers to as
        substantive crimes. In this case, for example, the substantive crime is
        the actual interference with interstate commerce by robbery. (App. 667,
        lines 18-23).

              (3) The government must prove the defendant and at least one
        other person knowingly and deliberately arrived at an agreement or
        understanding that they and, perhaps others would conspire to interfere
        with interstate commerce by robbery by a means of some common plan
        or course of action as alleged in Count 1 of the indictment. (App. 669,
        lines 4-9).

              (4) Now, members of the jury, now let me turn to Count 2 of the
        indictment. Count 2 charges the defendant, Ira Potter--Ira Potter--with
        interference with interstate commerce by robbery as follows . . . . (App.
        674, lines 12-16).

              (5) And that as a result of the defendant’s actions, interstate
        commerce or an item moving in interstate commerce was delayed,
        obstructed or affected in any way or degree. (App. 675. line 24 - 676,
        line 1).

              (6) Now, if you decide that the defendant obtained or attempted to

                                            10
         obtain another person’s property against his will or her will by the use of
         threat of force, violence or fear of injury, you must then decide whether
         this action will affect interstate commerce in any way or degree.
               You must determine whether there is an actual or a potential effect
         on commerce between any two or more states or commerce within one
         state that goes through any place outside the state.
               Commerce means travel, trade, traffic, commerce, transportation or
         communication among or between the states.
               And this is not an issue, because there was a stipulation agreeing
         that the elements of the state commerce were met. (App. 678, lines 10-
         23) (emphasis added).20


         Potter claims that the jury instruction on the effect of the stipulation as to the fact

of the interstate commerce aspect of the business of Cousin Danny’s Bar requires a

reversal of his convictions on all three counts in the Indictment.

         Potter relies on United States v. Mentz, 840 F.2d 315, 318 (6th Cir. 1988) for the

proposition that, where the district court directs a verdict on an element in the offense, the

subsequent conviction must be reversed. In Mentz, and over the defendant’s timely

objection, the district court advised the jury, in a bank robbery case, that the element

regarding the fact that the monies of the bank were insured by the Federal Deposit

Insurance Corporation had been proven. In effect, over the objection of the defendant,

the district court directed a verdict on that one element of the charge of bank robbery.

         No objection was taken by Potter’s counsel to the underlined statement of the

district court. Thus, the issue is whether the underlined statement constitutes plain error


  20
     Earlier in the instruction, the district court directed: “Now, there was also a
stipulation of fact which you may accept or reject along with any of the other evidence in
this case.” (App. 661, lines 16-18).
                                              11
and requires reversal of the convictions. United States v. Olano, 507 U.S. 725, 734-35

(1993) and Johnson v. United States, 520 U.S. 461, 467 (1997), taken together, teach that

the appellant, Potter, has the burden to prove that (1) the court erred; (2) the error was

obvious under the law at the time of the review; and (3) the error affected substantial

rights, that is, the error affected the outcome of the proceedings.

         The Olano-Johnson analysis leads to the inevitable conclusion that the

unfortunate and apparently ad-libbed statement of the district court concerning the

“elements of state commerce” did not affect the outcome of the proceeding. The defense

in the case was limited to identity. The factual issue of interstate commerce was covered

by the stipulation. The issue of interstate commerce was not even addressed in the final

arguments of counsel.

    V. The Claim of Prejudicial Errors during the Sentencing Phase of the Case

A. The Pre-Sentence Report’s Mistaken Reference to a Guilty Plea

         The pre-sentence report calculated the total offense level at 28. After

determining that the offense level was 20, two points were added for a threat of death,

two levels for the bodily injury sustained by Freeman and the others in the Freeman

residence, two levels for the physical restraint of Freeman and his relatives, and two

levels for Potter’s organizer/managerial role. Given the offense level of 28, with a

Criminal History of III, the advisory guideline range was 97 to 121 months for Counts

One and Two, plus a requirement of an additional 84 months to be served consecutively

for the weapons violation in Count Three.

                                             12
         The pre-sentence report incorrectly stated that the first three enhancements were

pursuant to a written guilty plea agreement. Potter attacks his sentence based on the

incorrect report about a written guilty plea agreement. The attack is frivolous. No

mention was made of the incorrect statement. The district court conducted an extensive

sentencing hearing. A review of the record clearly indicates that he knew the guilty

stance of the defendant resulted from the jury trial.

B.       The Challenged Additional Two Levels for Potter’s Organizer/Managerial
         Role

         Potter’s trial counsel challenged the recommendation submitted in the pre-

sentence report. However, Potter offered no testimony to support the challenge, but only

the argument of his counsel. We find no error in the determination of the district court

that Potter was the organizer of the criminal conduct. The challenge is rejected.

C.       The Claimed Failure to Consider Sentencing Factors in 18 U.S.C. § 3553(a)

         Potter finally alleges that the district court failed to appropriately consider the

§3553(a) factors and was, therefore, unreasonable. In order for us to find that a sentence

was reasonable, the “record must demonstrate the trial court gave meaningful

consideration to the 3553(a) factors” and that “those factors were reasonably applied to

the circumstances of the case.” United States v. Cooper, 437 F.3d 324, 329-30 (3d Cir.

2006). We do not require a rote statement that the district court has read Booker and

understands the advisory nature of the guidelines nor a factor-by-factor analysis of the

sentence under § 3553(a). Id. at 329. What we require is that the record demonstrate


                                              13
careful consideration of the § 3553(a) factors and a sentence that reflects that

consideration.

         The sentencing hearing included testimony by Potter’s father in support of a

sentence of leniency. Additionally, Freeman and Urey testified as to the injuries received

in the beatings inflicted by Potter, Ashmore and Hudgins during the morning of February

13, 2004.

         The government argued for an upward variation from the sentencing guidelines.

The district court then continued the sentencing until the next day when he imposed the

sentence of 205 months. In the process, the district court recited his consideration of the

sentencing factors in a complete fashion and, after reviewing the sentence, we find it to be

a reasonable sentence within the advisory guidelines, which we find the district court

correctly determined.

         Finding no error, we will AFFIRM the judgment of the district court.




                                             14
