                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-26-2004

USA v. Trala
Precedential or Non-Precedential: Precedential

Docket No. 02-4524




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"USA v. Trala" (2004). 2004 Decisions. Paper 164.
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                         PRECEDENTIAL         704 King Street
                                              First Federal Plaza, Suite 110
    UNITED STATES COURT OF
           APPEALS                            Wilmington, DE 19801
     FOR THE THIRD CIRCUIT
                                              Attorney for Appellant
              No: 02-4524
                                              Keith M. Rosen, Esq. (Argued)
   UNITED STATES OF AMERICA
                                              Office of United States Attorney
                    v.
                                              1007 Orange Street, Suite 700
       JOHN WALTER TRALA                      Wilmington, DE 19899
              a/k/a Sonny
                                              Attorney for the Appellee
        a/k/a Walter John Trala

             JOHN WALTER TRALA,
                                              McKEE, Circuit Judge.
                                                    John Walter Trala appeals his
               Appellant                      conviction for bank robbery, conspiracy to
                                              commit bank robbery, and use of a firearm
 Appeal from the United States District       during a crime of violence. For the
                  Court                       reasons below, we will affirm.
      for the District of Delaware
                                                                   I
       (Crim. No. 00-cr-00023-1)
 District Court: Hon. Gregory M. Sleet               A.Background of the Robbery
                                                      Trala’s conviction stems from his
      Argued: December 15, 2003
                                              participation in the armed robbery of the
                                              PNC bank branch in the Eden Square
  Before: ROTH and M cKEE, Circuit
                                              Shopping Center in Bear, Delaware (the
              Judges,
                                              “Bank”). However, events began in the
  and ROSENN, Senior Circuit Judge.
                                              spring of 1999 when the Bank’s head
                                              teller, Melissa Bailey, began stealing
        (Filed October 26, 2004)
                                              money from the Bank’s vault to support
                                              her husband’s drug habit. App. 1248-51.
               OPINION
                                              By November 1999, Mrs. Bailey had
                                              stolen approximately $100,000. App.
Penny Marshall, Esq. (Argued)
                                              1250.
Office of the Federal Public Defender
                                                     Around     that   time,   the   Bank

                                          1
received $400,000 in cash from the                         The bank was robbed at
Federal Reserve to cover an increase in             approximately 8:00 AM on January 14,
customer withdraws that was anticipated             2000. App. 1031-33. As planned, Mrs.
as a result of the “Y2K” computer scare.            Bailey was present, as was Bank manager,
App. 1251-52, 1254. Mrs. Bailey, as head            Brian Warnock. Id. Another Bank teller,
teller, had sole responsibility for these           Lillian Foley, arrived while the robbery
funds, which were kept in a separate safe           was in progress. App. 1053. After the
inside the Bank’s vault. App. 1252. The             robber fled, Foley drove to a nearby store
influx of Y2K funds afforded Bailey an              and asked someone to call the police.
opportunity to replace the $100,000 she             App. 1056-57. When Delaware police
had stolen from the Bank. However,                  arrived, an officer found a red sweatshirt
Bailey knew that any shortfall in the Y2K           and black knit cap on a sidewalk near the
funds would eventually be discovered                Bank. Those garments matched the Bank
because those funds had to be returned to           employees’ descriptions of the garments
the Federal Reserve on January 19, 2000.            worn by the robber. App. 1073.2 Warnock
App. 1255-56.                                       and Foley described the robber as 5’6”-
                                                    5’9,” 150-160 pounds, 3 and wearing a red
       Mrs. Bailey’s husband, Philip
                                                    hooded sweatshirt. App. 1033, 1054.
Bailey, operated a concrete business where
                                                    Warnock also indicated that the perpetrator
Trala worked as a concrete finisher. App.
                                                    was wearing a dark stocking cap and
1119. In the fall of 1999, Mrs. Bailey and
                                                    sunglasses.    See App. 1033.       When
Trala began discussing the possibility of
                                                    questioned, Mrs. Bailey denied any
robbing the Bank to create an explanation
                                                    involvement in the robbery and indicated
for the missing Y2K funds. The robbery
                                                    that $400,000 had been stolen from the
would account for any shortfall in the Y2K
                                                    vault. App. 1274-75.
funds, thereby preventing the detection of
Mrs. Bailey’s prior embezzlement when                       Mr. Bailey was sick at home on the
those funds were returned to the Federal            morning of the robbery. App. 1143. He
Reserve. App. 1136-37, 1258-59. Mrs.                testified at Trala’s trial that Trala came
Bailey informed Trala about the “Y2K”               into Mr. Bailey’s room the morning of the
funds, told him where the money was                 robbery, pulled money out of a brown
located, and informed him that she would
have to be present during the robbery they
were planning because she was the only                      2
                                                            Trala admitted at trial that the red
person with the second half of the
                                                    sweatshirt was his, and that he owned a
combination to the vault. App. 1259-60.1            number of black knit caps like the one found
             B. The Robbery                         near the scene of the robbery. App. 1762.
                                                        3
                                                          During a routine processing interview,
    1
       Any other Bank employee would have           Trala stated that he was approximately 5’8”
the first half of the combination. App. 1259.       and 155 pounds. App. 1564.

                                                2
paper bag, and asked Bailey how much he                driver’s license, Officer Guthrie asked him
wanted. App. 1144-45. Bailey further                   for his name and date of birth. Trala
testified that Trala told him that he would            replied that his name was “Natt Albert
put the money in Mr. Bailey’s shop. Id.4               Allen, Jr.” App. 1441. Prince also told
Later that day, Trala returned home to                 Officer Guthrie that Trala’s name was
Elkton, Maryland and paid his landlord for             “Natt Allen, Jr.” App. 1449. In speaking
two weeks’ rent. He paid in $100 bills,                with the Officer, Trala stated that he had
which the landlord testified was unusual.              over $10,000 in cash in the car, and said it
App. 1104-05. Trala then left Maryland                 was proceeds from a recent property deal.
and drove to North Carolina with his                   App. 1444.
girlfriend, Vicky Prince, and her daughter.
                                                               When Sergeant Felicia Long
App. 1776-77.
                                                       arrived on the scene, she spoke to Trala at
       On February 10, 2000, Mrs. Bailey               the “rear of the vehicle” and he repeated
was interviewed by an FBI agent and                    what he had just told Officer Guthrie.
confessed her involvement in the Bank                  App. 1963-64. Sgt. Long then spoke to
robbery, as well as the 1999 thefts. App.              Prince “at the front of the vehicle.” Prince
1360-61.                                               initially identified herself as “Michele
                                                       Trala,” but later said that her name was
      C.Trala’s        Arrest     in    North
                                                       actually Vicky Prince. App. 1465, 1470.
Carolina
                                                       When asked about the cash, Prince initially
       On the morning of February 10,                  stated that the money came from “working
2000, Moorehead City, North Carolina                   and saving.” App. 1468. When asked the
Patrol Officer, Timothy Guthrie, stopped a             same question later in the conversation,
1990 Ford Taurus. Trala was driving and                she stated that Trala “won it at the races in
Prince was a passenger. App. 1440, 1464-               Delaware.” App. 1970. However, Prince
70. When Trala could not produce a                     changed her story after police told her that
                                                       there would be a record of any winnings at
                                                       the race track. Prince then said that Trala
  4
     Trala had a different version of the events       “won the money at the slots.” App. 1471.
that took place on the day of the robbery. He
testified that he showed up for work that                      Prince and Trala were placed under
morning, but found the shop empty. App.                arrest and police eventually searched the
1766. While he was cleaning towels, Mr.                car where they found $35,123 in cash.
Bailey arrived and went into the office area of        App. 1487-89. Trala was subsequently
the shop. App. 1766-67. When Trala finished            turned over to federal authorities in
his work, he went into the office and noticed          Delaware and charged with: (1) bank
that Mr. Bailey had a large amount of cash.            robbery in violation of 18 U.S.C. §§
App. 1767. When he questioned Mr. Bailey               2113(a) and (d), and 2 (Count I); (2)
about the money, Mr. Bailey gave him                   conspiracy to commit bank robbery in
approximately $30,000 dollars and told him to
                                                       violation of 18 U.S.C. § 371 (Count II);
stay quiet about what he had seen. Id.

                                                   3
and (3) use of a firearm during a crime of              matched Trala’s DNA to a reasonable
violence in violation of 18 U.S.C. §                    degree of scientific certainty. App. 1640.
924(c)(1) (Count III). App. 36-38.5
                                                                Prior to trial, Trala filed a motion in
        D.DNA and Trace Evidence                        limine challenging the admissibility of the
                                                        DNA evidence. He argued that the
        The sweatshirt and knit cap that
                                                        evidence should be excluded because
police found just outside the Bank were
                                                        PCR/STR typing, as applied to mixed
sent to the FBI laboratory in Washington,
                                                        DNA samples, did not satisfy the standard
D.C. App. 1498-99. FBI agents also
                                                        for scientific reliability under Federal Rule
collected hair and saliva samples from
                                                        of Evidence 702 or Daubert v. Merrell
Trala and took carpet samples from his
                                                        Dow Pharmaceuticals, Inc., 509 U.S. 579
motel home. App. 1492-93, 1504-05.
                                                        (1993). After conducting a three-day
These samples were sent to the FBI
                                                        evidentiary hearing, the district court
laboratory for comparison with the
                                                        issued a well reasoned and comprehensive
samples from the sweatshirt and knit cap.
                                                        opinion explaining its conclusion that the
App. 1493-94, 1506.
                                                        expert testimony was admissible.
           Forensic examination determined
                                                               E.Jury Deliberations
that the hairs taken from the garments
e x h i b i te d th e s a m e m i c r o s co p ic               The trial began on Monday,
characteristics as the hairs taken from                 November 26, 2001. App. 899. By
Trala and the fibers taken from his carpet.             Friday, November 30, both sides had
App. 1591-92. The FBI laboratory also                   rested, and the jury began deliberations at
compared DNA taken from hairs on the                    approximately 1:00 PM. App. 1919. The
knit cap found near the Bank following the              first day of deliberations ended at 4:30 PM
robbery with DNA taken from Trala’s                     due to a juror’s previously scheduled
saliva sample. The forensic examiner used               weekend trip. App. 1919, 1931-3. The
a method of DNA typing known as                         following Mon day, Decem ber 3 ,
“PCR/STR” typing. App. 1630, 1633.                      deliberations did not beg in until
The results revealed that the sample taken              approximately 1:00 PM because the same
from the knit cap was mixed, i.e., it                   juror was late returning from her trip.
contained DNA from more than one                        App. 1966. Shortly after 5:00 PM on the
person. App. 1639-40. The examiner                      second day of deliberations, the court
determined, however, that there was a                   asked the deputy clerk to find out if the
clear majority contributor to the sample,               jurors wanted to order dinner and continue
and that the DNA of the major contributor               their deliberations. App. 1965. The jury
                                                        responded with the following question:
                                                        “The jury wants to know if they can’t
    5
      In addition to these three counts, Mrs.           come to [a] unanimous decision, and this
Bailey was charged with embezzlement in                 is before they decide about dinner, is it
violation of 18 U.S.C. § 656. App. 38.

                                                    4
over or will they have to come back?” Id.          not answering their question.


      The following exchange then took
                                                          THE COURT:I feel like we’re
place between the court and defense
                                                   answering their question. If they have a
counsel:
                                                   further question to the Court’s response,
        THE COURT:[M]y inclination at              we’ll respond at that time.
this time at 5:05 is to advise the jury that
we’re prepared to order dinner.
                                                   App. 1966-67. When informed of the
              ...
                                                   court’s response, the jurors decided to
                                                   order dinner. At approximately 8:00 PM,
                                                   they returned with a verdict finding Trala
       [DEFENSE COUNSEL]: Your
                                                   guilty on all charges.6 App. 1967, 1969-
Honor, the difficulty is that [this] is some
                                                   72.
expression of . . . possibly not being able
to reach a verdict.                                        This appeal followed.
                                                                        II
        THE COURT:The jury hasn’t                  A.   Expert Testimony Relating to
deliberated long enough to even be close           PCR/STR DNA Typing
to that point. They didn’t commence their
                                                           Trala’s primary argument is that the
deliberations until 1:00 o’clock today.
                                                   district court erred by admitting DNA
They didn’t start their deliberations until
                                                   evidence linking him to the knit cap found
1:00 o’clock on the day that they got the
                                                   near the scene of the robbery. He argues
case . . . .
                                                   that PCR/STR DNA typing does not meet
                                                   the standard for scientific reliability under
                                                   Federal Rule of Evidence 702 and Daubert
       [DEFENSE COUNSEL]:Here is
                                                   when applied to mixed DNA samples.
my problem, your Honor. If they asked the
                                                   “We review the decision to admit or reject
question and we give no response to it one
                                                   expert testimony under an abuse of
way or the other, then we put them in a
                                                   discretion standard.” Schneider ex rel.
position.
                                                   Estate of Schneider v. Fried, 320 F.3d 396,


      THE COURT:Of ordering dinner
and continuing their deliberations.                   6
                                                       Trala was eventually sentenced to a total
                                                   of 322 months imprisonment, five years of
                                                   supervised release, a $300 special assessment,
       [DEFENSE COUNSEL]:But we’re                 and restitution in the amount of $144,457.
                                                   App. 1974-80.

                                               5
404 (3d Cir. 2003).7                                 rests on a reliable foundation and is
                                                     relevant to the task at hand.” Id. at 597. In
        After careful examination of the
                                                     light of this, we note that the district
record, we conclude that there was no
                                                     court’s painstaking opinion provides a
abuse of discretion. We hold that the
                                                     thorough and compelling analysis of the
PCR/STR DNA typing utilized in this case
                                                     court’s rejection of Trala’s challenges to
does in fact meet the standards for
                                                     the DNA evidence. We conclude that the
reliability and admissibility set forth in
                                                     court did not abuse its discretion in
Federal Rule of Evidence 702 and
                                                     admitting the DNA evidence substantially
Daubert. In Daubert, the U.S. Supreme
                                                     for the reasons Judge Sleet sets forth in his
Court interpreted and applied Rule 702,
                                                     opinion. See 162 F. Supp. 2d 336 (D. Del.
which replaced the common law rule
                                                     2001).
requiring “general acceptance” for the
admissibility of scientific evidence with aB.        The Jury’s Question about Continuing
standard requiring an “assessment of                 Deliberations
whether the reasoning or methodology
underlying the testimony is scientifically
valid and of whether that reasoning or                      Trala also argues that the district
methodology properly can be applied to               court coerced the jury into reaching a
the facts in issue.” Daubert v. Merrell Dow          verdict by giving them a “non-responsive
Pharmaceuticals, 509 U.S. at 586, 592-3.             directive to order dinner” in response to
The Court held that “the Rules of                    their inquiry about whether they would
Evidence—especially Rule 702 —do                     have to continue deliberations the
assign to the trial judge the task of                following day if they were deadlocked.
ensuring that an expert’s testimony both             Br. at 35 (internal quotation marks
                                                     omitted). He argues that “[a] reasonable
                                                     impression was given to the jurors that
   7
      Trala suggests that we should apply the        they needed to stay until they reached a
plenary standard of review to the district           verdict, no matter how long that took.” Id.
court’s “interpretation of Rule 702’s
application to DNA evidence.” Br. at 64.                    Although a district court may not
However, the court did not interpret Rule 702;       coerce a jury into reaching a unanimous
it merely applied the rule in accordance with        verdict, it is well-established that it has
Supreme Court and Third Circuit precedent.           broad discretion to determine how long
Compare Elcock v. Kmart Corp., 233 F.3d              jury deliberations should continue. See,
734, 745 (3d Cir. 2000) (exercising plenary          e.g., Govt. of V.I. v. Gereau, 502 F.2d 914,
review of the district court’s decision not to       935-36 (3d Cir. 1974). Thus, “[a]bsent
conduct a Daubert hearing, but noting that we        peculiar evidence indicative of coercion, it
“ordinarily review a district court’s                is proper for a judge to instruct a
application of Rule 702, as well as the              deadlocked jury to continue deliberations
decision whether to grant a Daubert hearing,
                                                     and attempt to arrive at a verdict.” Id.; see
for abuse of discretion . . . ”).

                                                 6
also United States v. Grosso, 358 F.2d             a matter within the discretion of the trial
154, 159 (3d Cir. 1966), overruled on              judge, and his action in requiring further
other grounds, 390 U.S. 62 (1968). In              deliberation after the jury has reported a
Gereau, we affirmed a guilty verdict               disagreement does not, without more,
where the jurors were instructed to                constitute coercion.” Id. at 160; compare
continue deliberations for at least one            U.S. v. Fioravanti, 412 F.2d 407 (3d Cir.
more afternoon after they had already              1969) (holding that the Allen charge,
deliberated for nearly 40 hours. Despite           where the court instructs jurors in the
the length of the deliberations, we found          minority to question their own judgment in
that there “was no threat that the jury            light of the contrary view held by the
would be locked up indefinitely unless a           majority, was coercive).
verdict was reached . . . .” Id. at 936;
                                                          Here, the court did not require the
compare Jenkins v. U. S., 380 U.S. 445,
                                                   jurors to stay and order dinner as Trala
446 (1965) (per curiam) (finding coercion
                                                   suggests. Rather, the judge gave jurors the
where, after two hours of deliberations, the
                                                   option of ordering dinner and continuing
court told a deadlocked jury: “You have
                                                   their deliberations into the evening. App.
got to reach a decision in this case.”)
                                                   1965 (“I’ve asked our courtroom deputy to
(internal quotation marks omitted).
                                                   find out if the jury wants to order dinner.
       Our decision in Gereau was based            They’re discussing it.”). The jury then
in part on the fact that the court there           responded with the following question:
advised the jury that it did not have to           “[I]f they can’t come to [a] unanimous
reach a unanimous verdict. Id. However,            decision, and this is before they decide
such an instruction is not required unless         about dinner, is it over or will they have to
there is some evidence of coercion.                come back?” App. 1965. After a brief
United States v. Price, 13 F.3d 711, 725           discussion with defense counsel, the court
(3d Cir. 1994) (“The mere absence of . . .         simply reiterated that it was “prepared to
an instruction [that the jury can return a         order dinner.” App. 1966. At that point,
hung verdict] does not in and of itself            the jury, which had only deliberated for
suggest coercion.”). Nor does the court            four hours that day (and a total of seven
have to set a particular time limit on             and a half hours), chose to order dinner
deliberations, even after the jury has             and continue deliberations. App. 1966-67.
expressed that it is hopelessly deadlocked.        Three hours later, they reached a verdict.
In Grosso, for instance, we affirmed a             This does not suggest a “threat that the
guilty verdict where the court simply              jury would be locked up indefinitely unless
instructed a deadlocked jury to “keep on           a verdict was reached, nor was there any
working.” 358 F.2d at 159 (internal                indication that jurors should doubt the
quotation marks omitted). We held that             judg men ts t h e y h a d a r r iv e d a t
“[t]he length of time a jury may be kept           independently.” Gereau, 502 F.2d at 936.
together for the purpose of deliberation is        The court merely implied that it was not


                                               7
convinced of a deadlocked jury after only          124 S.Ct. 1354 (2004):
seven and a half hours of deliberations.
This was a proper exercise of the court’s
discretion.                                               Leaving the regulation of
                                                          out-of-court statements to
       C.Prince’s Statements to Sgt.
                                                          the law of evidence would
Long
                                                          render the Confrontation
        Finally, Trala argues that the court              Clause powerless to prevent
erred in admitting Prince’s conflicting                   even the most flagrant
statements to Sgt. Long regarding her                     inquisitorial practices. . . .
identity, and the source of money in his                  Where         testimonial
car. He challenges Long’s testimony that                  statements are involved, we
Prince said: (1) that her name was                        do not think the Framers
“Michele Trala”; (2) that her name was                    meant to leave the Sixth
actually Vicky Prince; (3) that the money                 Amendment's protection to
in the car was from working and saving;                   the vagaries of the rules of
(4) that Trala won the money at the                       evidence, much less to
racetrack; and (5) that he won the money                  amorphous notions of
playing slot machines. See App. 1465-71.                  "reliability." 124 S.Ct. at
Trala argues that the admission of these                  1364, 1370.
statements violated the Confrontation
Clause of the Sixth Amendment and
Federal Rule of Evidence 402. We will              We exercise plenary review over
address each of these arguments in turn.           Confrontation Clause challenges. United
                                                   States v. Mitchell, 145 F.3d 572, 576 (3d
              1.Th e Confronta tion                Cir. 1998).8
Clause
                                                         The right of cross-examination is
        Trala concedes that Prince’s               secured by the Confrontation Clause.
statements were not hearsay because they           Crawford v. Washington, 124 S.Ct. at
were not offered to prove the truth of the         1357; see also Douglas v. Alabama, 380
matter asserted. See Fed. R. Evid. 801(c).         U.S. 415, 418 (1965). In Crawford, the
Rather, the statements were offered in an          Court held that witnesses’ out-of-court
attempt to establish Trala’s consciousness
of guilt. App. 1466. Yet this does not end
                                                     8
our inquiry under the Confrontation Clause              The government argues that Trala did not
of the Sixth Amendment. As the Supreme             preserve his Confrontation Clause claim at
Court noted recently in Crawford v.                trial. We disagree. At trial, defense counsel
Washington,                                        specifically objected to Sgt. Long’s testimony
                                                   regarding Prince’s statements during the
                                                   traffic stop on grounds that it violated the
                                                   Confrontation Clause. App. 1466-67.

                                               8
statements that are testimonial are barred                      of the statement. Id. After he was
by the Confrontation Clause, regardless of                      convicted, the defendant challenged the
determinations of reliability, unless the                       admission of the confession on grounds
witnesses are unavailable and the                               that it violated the Confrontation Clause.
defendant has had a prior opportunity for                       The Supreme Court held that “[t]he
cross-examination.             Though Crawford                  Clause’s fundamental role in protecting the
bears generally on the present case because                     right of cross-examination . . . was
the evidence in question is testimonial                         satisfied by [the Sheriff’s] presence on the
(“[s]tatements taken by police officers in                      stand.” Id. at 414. It further noted that
the course of interrogations are also                           “[i]f [the defendant’s] counsel doubted
testimonial under ev en a narro w                               that [the] confession was accurately
standard”), its principles are not                              recounted, he was free to cross-examine
contravened because the reliability of                          the Sheriff . . . .” Id. The Court
Prince’s out of court statements is not at                      acknowledged the possibility that the jury
issue here. Crawford v. Washington, 124                         might improperly consider the truthfulness
S.Ct. at 1364. Crawford restates the                            of the confession, as in Bruton v. United
constitutional requirement of cross-                            States, 391 U.S. 123 (1968), despite the
examination, or confrontation, as the                           district court’s instruction to the contrary.
primary—and                     indeed,            the          Id.9 Nevertheless, despite its Bruton
necessary—means of establishing the                             concerns, the Court found that the
reliability of testimonial evidence. “Where                     probative value of the confession
testimonial statements are at issue, the only                   outweighed the possibility of misuse, and
indicium of reliability sufficient to satisfy                   that “there were no alternatives that would
constitutional demands is the one the                           have both assured the integrity of the
C o n s t i t u ti o n a c t u al l y p r e s c ri b e s:       trial’s truth-seeking function and
confrontation.” Id. at 1374.                                    eliminated the risk of the jury’s improper
          Crawford does not apply where the
reliability of testimonial evidence is not at
issue, and a defendant’s right of
confrontation may be satisfied even though
the declarant does not testify.                     For
                                                                      9
example, in Tennessee v. Street, 471 U.S.                                In Bruton, the Court reversed the
409, 411-12 (1985), the confession of a                         defendant’s conviction based on the admission
co-conspirator was read into the record                         of a co-defendant’s confession, despite the
during defendant’s murder trial. It was                         fact that the court instructed the jury “that
introduced through the sheriff who had                          although [the co-defendant’s] confession was
obtained it and it was admitted solely to                       competent evidence against [him] it was
rebut the defendant’s testimony.                     Id.        inadmissible hearsay against [defendant] and
                                                                therefore had to be disregarded in determining
Significantly, the jury was specifically
                                                                [defendant’s] guilt or innocence. 391 U.S. at
instructed not to consider the truthfulness
                                                                125.

                                                            9
use of evidence.” Id. at 414-416.10                  existence of any fact that is of
        Although the court here did not              consequence to the determination of the
expressly caution the jury against                   action more probable or less probable than
considering the truthfulness of Prince’s             it would be without the evidence.”). The
statements, it is clear that no such warning         district court found that Prince’s
was required because, unlike the situation           statements were relevant to show Trala’s
in Street, there was absolutely no risk that         consciousness of guilt under United States
the jury would mistakenly assume the truth           v. Palma-Ruedas, 121 F.3d 841 (3d Cir.
of Prince’s statements.         In fact, the         1997), overruled on other grounds, United
statements were admitted because they                States v. Rodriguez-Moreno, 526 U.S. 275
were so obviously false. They established            (1999). App. 1466. Our review of the
that Prince was lying to the police about            court’s interpretation of Rule 402 is
her identity, as well as the source of the           plenary. Mitchell, 145 F.3d at 576.11
money in Trala’s car. Moreover, Trala’s                     In Palma-Ruedas, a detective came
testimony was not to the contrary. Even he           to the house where the defendant was
testified that Prince’s name was not                 located and a woman named Alvarez
“Michele Trala,” and that the money did              answered the door along with defendant,
not come from savings, the racetrack, or             whose actual name was Omar Torres-
playing slot machines. See App. 1767,                Montalvo. Id. at 856. At trial, the
1771.      Furthermore, Sgt. Long was                detective testified that Alvarez told him
available for cross-examination, so defense          that Montalvo’s name was “Carlos
counsel therefore had an opportunity to              Torres.” We held that the statement was
question her account of the conversation             not being introduced to prove the truth of
with Prince. Under these circumstances,              the matter asserted, but rather to “show
we find that Trala’s rights under the                consciousness of guilt . . . .” Id. We
Confrontation Clause were satisfied.
               2.Federal Rule of Evidence               11
                                                           The government also argues that Trala
402
                                                     did not properly preserve his relevance
        Trala also challenges the relevancy
                                                     objection at trial. However, defense counsel
of Prince’s statements under Federal Rule            raised a relevance objection when the
of Evidence 402 (“Evidence which is not              government attempted to elicit similar
relevant is not admissible.”); see also Fed.         testimony from Officer Guthrie, but was
R. Evid. 401 (“‘Relevant evidence’ means             overruled by the court. App. 1445-1448. In a
evidence having any tendency to make the             subsequent sidebar conference to discuss
                                                     defense counsel’s objections to Sgt. Long’s
                                                     testimony regarding Prince’s statements
   10
     In United States v. Inadi, 475 U.S. 387,        during the stop, the court stated that it was
394 n.5 (1986), the Supreme Court cites              “not going to allow [defense counsel] to
Green for the proposition that there is not a        reargue . . . the same objection.” App. 1466.
complete overlap between hearsay rules and           Therefore, the issue of relevance was properly
the Confrontation Clause.                            preserved at trial.

                                                10
explained:                                         admitted.12    However, as we explain
       Even though M ontalvo did                   below, we also conclude that the error was
       not offer the information                   harmless.
       himself, he allowed Alvarez                         There was an overwhelming
       to offer the false statement                amount of objective evidence linking Trala
       without correcting her. The                 to the robbery, including: (1) the similarity
       s t a te m e n t w a s t h us               between his build and the description of
       p r o b a t iv e regard in g                the robber; (2) his admission that he
       cons ciousness of g uilt                    owned the sweatshirt found near the scene
       because the jury could have                 of the robbery; (3) his admission that he
       reasonably inferred that                    also owned a number of black knit caps
       M o n t a lvo w e lc o m ed                 like the one found near the scene of the
       Alvarez’s misidentification                 robbery; (4) the DNA evidence linking
       of him.                                     him to the garments found near the scene
                                                   of the crime; (5) Mrs. Bailey’s testimony
Id. Here, however, Sgt. Long testified that        regarding her discussions with Trala about
she questioned Prince at “the front of the         robbing the bank and the location of the
vehicle” after she questioned Trala near           Y2K funds; (6) her testimony that she
“the rear of the vehicle.” (App. 1463,             recognized Trala during the course of the
1465). Trala and Prince were therefore             robbery, including the red sweatshirt that
separated by at least a car-length when she        he wore; (7) Mr. Bailey’s testimony that he
made the comments. In Palma-Ruedas,                saw Trala on the morning of the robbery
Montalvo was standing next to the                  with a brown paper bag full of money; 13
declarant when she falsely identified him.         and (8) the unexplained cash in Trala’s
Without more than was developed on this            car. In addition, Trala himself lied to
record about the respective positions of           police about his name and the source of
Trala and Prince when Prince made the              the money in his car, and those statements
challenged statements, the jury could only         were clearly relevant and admissible. See
speculate as to whether Trala heard Prince
so that he could have corrected Prince’s
                                                       12
misstatements. Absent such additional                    Because we find that the admission of
evidence tying Trala to Prin ce’s                  Prince’s statements constituted legal error, we
statements, her statement regarding Trala’s        need not consider Trala’s additional challenge
identity was not relevant to show Trala’s          under Federal Rule of Evidence 403.
consciousness of guilt.        Because the
evidence was not relevant for any other               13
                                                        This is consistent with eyewitnesses
purpose, we find that it was improperly
                                                   who said the robber put the stolen money
                                                   in a paper bag, and who saw the robber
                                                   leave the bank carrying a brown paper bag.
                                                   App. 1036, 1054, 1272.

                                              11
United States v. Levy, 865 F.2d 551, 558                    requires a new trial.14
(3d. Cir. 1989) (en banc) (“[D]efendants’                                        III
attempt to conceal their true identities by                         For the reasons set forth herein, we
providing aliases to the police upon arrest                 will affirm Trala’s judgment of conviction
is relevant as consciousness of guilt.”).                   and sentence.15
Thus, Prince’s statements about his name
and the source of the funds added little if
                                                               14
anything to the evidence against him.                            In fact, given the additional evidence of
          It is also significant that Prince and            Trala’s guilt, the prosecutor’s insistence on
Trala both independently told Officer                       admitting what Prince said at the rear of the
                                                            car was nothing more than “gilding the lily.”
Guthrie that Trala’s name was “Nate
Allen, Jr.” App. 1449. Although it is also                      15
                                                                   After this matter was submitted, Trala
unclear from the record whether Prince                      filed a Motion for Leave to File Supplemental
was near Trala when she made this                           Briefing in Light of Blakely v. Washington,
statement, this is still relevant to show                   124 S.Ct. 2531 (2004). In it he first argues
consciousness of guilt. The jury could                      that the Career Offender Enhancement that he
reasonably infer that Trala and Prince                      received “requires a district court’s findings as
agreed to lie about Trala’s true identity,                  to both the nature of the instant offense and
and that they did so to help him avoid                      prior convictions, i.e., whether such
apprehension. This is much stronger                         convictions qualify as crimes of violence.”
evidence of consciousness of guilt than in                  See U.S.S.G. § 4B1.1 (“A defendant is a
Levy, where we held that “the use of false                  career offender if [inter alia] the instant
identities by all three conspirators . . .                  offense of conviction is a felony that is either
                                                            a crime of violence or a controlled substance
tended to show joint planning and
                                                            offense [and] the defendant has at least two
coordination by the defendants in an
                                                            prior felony convictions of either a crime of
attempt to protect themselves from future                   violence or a controlled substance offense.”).
investigation and pursuit.” 865 F.2d at                     However, whether an offense is a “crime of
558. Under the facts of Levy, it was                        violence or a controlled substance offense” is
possible that the use of false names by all                 a legal determination, which does not raise an
three defendants was merely coincidence.                    issue of fact under Blakely or Apprendi v. New
Here, there is no question that the parties                 Jersey, 530 U.S. 466 (2000).
agreed beforehand that they would refer to                      Trala also challenges the district court’s
Trala as “Natt Allen, Jr.” Thus, even                       order of restitution. 18 U.S.C. § 3664(e),
though Prince’s statements to Sgt. Long                     provides: “Any dispute as to the proper
were inadmissible, the jury heard similar,                  amount or type of restitution shall be resolved
a d m i s s i b l e e v i d e n c e o f T r a l a ’s        by the court by the preponderance of the
consciousness of guilt. There is therefore                  evidence.” However, Blakely and Apprendi
no merit to Tala’s claim that this error                    apply only where there is a resolution of
                                                            disputed issues of fact that results in a
                                                            sentencing enhancement beyond the statutory
                                                            maximum. See Blakely, 124 S.Ct. at 2537

                                                       12
(“Our precedents make clear, however, that
the ‘statutory maximum’ for Apprendi
purposes is the maximum sentence a judge
may impose solely on the basis of the facts
reflected in the jury verdict or admitted by the
defendant.” (citations omitted). Here, there
was no contested evidence about the amount
of money that was taken. Therefore, the
amount of restitution was not a disputed issue
of fact under Blakely.


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