                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-14-2003

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Precedential or Non-Precedential: Non-Precedential

Docket 02-2665




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"USA v. Aikens" (2003). 2003 Decisions. Paper 556.
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                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                     No. 02-2665



                           UNITED STATES OF AMERICA

                                          v.

                                   PHILIP AIKENS,
                                     a/k/a Froggy

                                                     Philip Aikens,
                                                               Appellant


                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                           D.C. Criminal No. 01-cr-00335
                             (Honorable Jay C. Waldman)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 22, 2003
           Before: SCIRICA, Chief Judge*, AMBRO and WEIS, Circuit Judges

                                 (Filed: May 14, 2003)



                              OPINION OF THE COURT




  *Judge Scirica began his term as Chief Judge on May 4, 2003.
SCIRICA, Chief Judge.
       In this criminal appeal, defendant Philip Aikens challenges the legality of a search

and seizure by police officials and certain jury instructions.

                                               I.

       A jury convicted Philip Aikens of theft of interstate shipment and aiding and abetting

(18 U.S.C. §§ 659 and 2) (Count I); conspiracy to interfere with interstate commerce by

robbery (18 U.S.C. § 1951) (Count II); interference with interstate commerce by robbery

and aiding and abetting (18 U.S.C. §§ 1951 and 2) (Count III); brandishing a firearm during

and in relation to a crime of violence and aiding and abetting (18 U.S.C. §§ 924(c) and 2)

(Count IV); and bail jumping (18 U.S.C. § 3146) (Count V).

       The court imposed a sentence of concurrent terms of 72 months incarceration on

Counts I, II, III and V, plus a consecutive 84-month term on Count IV; five years of

supervised release; a $500 special assessment; and $115,000 in restitution. This timely

appeal followed.

                                              II.

       In the early morning on February 20, 2000, there was an armed robbery at Eastern

America Trucking Company, a warehousing company in Philadelphia. Two persons dressed

in black and wearing black ski masks and gloves confronted a security guard. One of the

robbers had a gun, which he pointed at the guard. The two robbers blindfolded the guard and

locked him in the back of an empty tractor-trailer on the trucking lot. The robbers then

drove off in an Eastern America truck loaded with $115,000 in sporting goods and

equipment scheduled for delivery to Modell’s Sporting Goods stores.

                                               2
       As the truck left the lot, another security guard at Eastern America Trucking

Company observed two other persons dressed in black and wearing black ski masks. They

fled on foot. The first guard was not freed until over three hours later, when a fellow

employee found him.

       Defendant Philip Aikens worked at Eastern America Trucking Company, loading

trucks, including the truck that was stolen in the February 20, 2000 robbery. He did not

return to work after February 20.

       On February 23, 2000, two Philadelphia police officers were advised of the Eastern

America robbery of Modell’s merchandise. They recalled that on February 17, they

arrested a juvenile, Gary McKeen. McKeen told them that his cousin, Phil Aikens, was

planning to rob a Modell’s truck from Aikens’ place of employment.

       On February 24, 2000, the police applied for two search warrants where Aikens was

known to reside – 2331 Frankford Avenue (the home of Aikens’ grandfather) and 2159

Hagert Street (the home of Aikens’ mother). The warrants were supported by identical

affidavits of probable cause and authorized a search for “black ski masks, semi-automatic

handgun, ammunition, any Modell’s clothing and footwear, any other evidence pertaining to

the described robbery.” After searching these premises, the police recovered a handgun and

Modell’s merchandise that was part of the stolen shipment.

       Aikens was arrested in March 2000. When questioned by the police, Aikens

admitted only to setting up the Eastern America robbery in return for $500 and some of the

stolen goods. In jail, however, he admitted a greater role to his cellmate, Kirke Szawronski,

                                              3
Jr. Aikens told Szawronski that he was the man with the gun who had pointed it at the guard

and then locked the guard in a trailer. Aikens also provided Szawronski with additional

details about the crime.

       Trial was set for October 29, 2001. The night before, however, Aikens cut his

electronic monitoring ankle bracelet and fled. On November 6, 2001, the police arrested

Aikens, who provided a false name and false identification card.

                                             III.

                                              A.

       The affidavits supporting the search warrants for Aikens’ two residences were

sufficient to establish probable cause. Executed four days after the robbery, the affidavits

identify Aikens as one of the robbers, and link him to a gun, stolen merchandise, and

clothing. These were items that could reasonably be expected to be found in the two

locations where Aikens lived.

       The search warrants sufficiently identified the nexus between the places to be

searched and the probable cause supporting the search. The gun and stolen sporting goods

merchandise obtained from the searches were properly admitted at trial. Furthermore, the

police officers executing the warrant acted in good faith. The District Court properly

admitted into evidence the gun and stolen merchandise seized in the search.

                                             B.

       The District Court did not commit plain error in failing to give verbatim the two

defense jury instructions. The requested instruction on the theory of the defense, in fact,

                                              4
did not state his theory of defense. Moreover, the court covered the substance of this

proposal. The defendant’s proposed multiple conspiracy instruction was also covered by

the court.

       Aikens’ theory of defense – that while he had conspired to commit a theft of a truck

and merchandise from his employer, he had not conspired to commit a robbery – is not

articulated in his proposed instruction, which did not ask the court to draw a distinction

between theft and robbery.1

       The District Court thoroughly covered the substance of the requested charge. The

court explained that the jury must determine if the government had proved each element of

each crime charged, including conspiracy to commit robbery. At several points, the court

specified that the purpose of the charged conspiracy was robbery, which the government

had to prove. The court plainly set forth the elements of robbery. The defense is not

entitled to a formulation of its own choosing. See Gov’t of the V.I. v. Fonseca, 274 F.3d

760, 769 (3d Cir. 2001). In any event, its proposal was amply covered. There was no error,

let alone plain error.

       Furthermore, the District Court did not commit plain error in refusing to give

verbatim defendant’s proposed instruction on multiple conspiracies. The court properly

charged that the government must prove the conspiracy charged in the indictment and that


   1
    That proposal states that he was “not guilty of the crimes charged because he did not
knowingly and willfully participate in a conspiracy to commit a robbery as charged” and that
the government was required to prove all the elements of the crime beyond a reasonable
doubt.

                                              5
Aikens was a member of the charged robbery conspiracy. The court identified the precise

charged conspiracy – to commit robbery – not some other conspiracy. We see no error,

let alone plain error.

                                           IV.

       For the foregoing reasons, we will affirm the judgment of conviction and sentence.
