                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                     No. 11-1168
                                    _____________

                           UNITED STATES OF AMERICA

                                            v.

                        DESHAWN LIVINGSTON, a/k/a Shizz
                             DeShawn Livingston,
                                           Appellant
                               _____________

                      Appeal from the United States District Court
                         For the Middle District of Pennsylvania
                               (D.C. Crim. No. 09-cr-72-3)
                    District Judge: Honorable Christopher C. Conner
                                     ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 13, 2011
                                   ____________

               Before: RENDELL, JORDAN and BARRY, Circuit Judges

                          (Opinion Filed: September 27, 2011)
                                    ____________

                                       OPINION
                                     ____________

BARRY, Circuit Judge

      Deshawn Livingston was convicted by a jury of two counts of Hobbs Act robbery,

two counts of carrying a firearm during a crime of violence, and one count of conspiracy,
in violation of 18 U.S.C. §§ 371, 924(c), and 1951, and was sentenced to 461 months of

imprisonment. On appeal, he argues that the District Court erred in denying his motion to

suppress; his motion for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978);

and his motions in limine to exclude (1) testimony regarding other robberies and (2) an

in-court identification that he argues was unreliable. He also contends that the

government presented insufficient evidence to the jury to show that the robberies at issue

had an effect on interstate commerce and that the Court, therefore, did not have

jurisdiction over the robbery and conspiracy counts.1 We will affirm.

I.     FACTUAL BACKGROUND

       A.     Robbery of Deborah Dobson and Omar Aquil, Sr.

       On the evening of January 2, 2008, Deborah Dobson was in her home in

Harrisburg recovering from cancer-related surgery. She was taking pain medication and

an antidepressant, among other medications, but claimed that the drugs did not affect her

ability to see, hear, or observe. She was hungry that evening and called her thirty-two-

year-old son, Omar Aquil, Sr. (“Aquil”), to ask him to bring her dinner. At the time, Aquil

was unemployed, and Dobson said that he “hustle[d]” to support himself, which she

explained as having “a problem with drugs and alcohol.” (App. at 285.)

       Aquil went to Dobson‟s home, and on his way out the door to pick up her dinner,

was stopped by two masked men, one of whom had a gun. The robbers ransacked the


       1
         Livingston was also charged with being a felon in possession of a firearm, but
that charge was dismissed on the government‟s motion.
                                            2
home and took Dobson and Aquil with them to different floors, telling Dobson each time

they moved to get down and stay covered with a blanket. They said to Aquil, “„give it up,

where is it at?‟” (Id. at 283.) From the context of the robbers‟ statements, Dobson

believed they were looking for drugs and money. At one point, she was in her darkened

living room with her face covered by a blanket, and she peeked out of the side of the

blanket and saw one of the robbers in the adjacent lighted dining room “loading [his] bag

up with goodies.” (Id. at 200.) He was not wearing a mask, and was about twenty feet

away from her. She saw him under those conditions for three or four minutes.

       Among other things, the robbers stole flat-screen televisions, a Nintendo, an X-

Box, games, fur and leather coats, cameras, and computers. Dobson said that the robbers

did not take any drugs or money from her home because she was not a drug dealer, and

thus no drugs or money were there.

       When the police arrived at Dobson‟s home shortly after the robbery, she was

crying and upset, and told them that she could not identify the robbers because they wore

masks the whole time. She said this, she later explained, because the robbers “knew who

[she] was, [she] didn‟t know who they were, and [she] basically feared for [her] life.” (Id.

at 221.) They took her keys to her home and car, which she was worried gave them

“[a]ccess to [her] home.” (Id. at 222.) In subsequent meetings with law enforcement about

the robbery, she continued to fail to disclose that she saw one of the robbers.

       At a preliminary hearing in state court a number of months after the robbery,


                                             3
Dobson recognized Livingston as the unmasked robber she had seen in her dining room.

At that hearing, Livingston was seated with his attorney at the defense table, wearing an

“orange prison outfit” (id. at 212). Dobson did not remember whether any other

defendants were in the room. Despite her recognition of Livingston, she testified under

oath that she could not identify the robbers. However, shortly before trial began in this

matter, two-and-a-half years after the robbery, Dobson told a law enforcement agent that

she could identify Livingston. She was “[c]ertain” that Livingston was the robber she saw

and stated that she would “never forget that face.” (Id. at 205.) She said she had been

“struggling with this for a very long time” and that her therapist advised her to “just tell

what [she knew] just to get it over with.” (Id. at 223.)

       Livingston filed a motion in limine to exclude Dobson‟s identification, which the

District Court denied, and she identified him at trial.

       B.     Robbery of Montaye Kitt

       Livingston was convicted of a second robbery – the robbery of Montaye Kitt on

February 1, 2008. At the time of the trial in this case, Kitt was serving an 11-year federal

sentence for possession of crack with intent to distribute, but in February of 2008 he was

living with his girlfriend in an apartment in Harrisburg. The night of the robbery, Kitt

arrived home around 3:00 a.m. When he got to his apartment, two men in black masks,

one of whom had a gun, jumped out and told him to “give up the money.” (Id. at 339.)

He testified that they did not ask him for drugs, but he agreed that he told the grand jury


                                              4
that they asked for “drugs or money.” (Id. at 353.) The robbers looked through Kitt‟s

truck and then went back to the apartment and ransacked it. Like Dobson, he was told to

lie on the floor, and they put a cover over him. The robbers stole televisions, a

Playstation, computer, and even “tissue in the linen closet.” (Id. at 341.) They also stole

money out of Kitt‟s pocket, which he testified was not drug proceeds.

       Kitt claimed that he was not engaged in drug trafficking during the period in which

the robbery occurred because he was recovering from a gunshot wound at that time, but

he also testified that he pled guilty to a federal drug charge that spanned the day of the

robbery.

       C.     Anneliese Scherrer, the Arrest of Livingston, and the Search Warrant

       On the morning of April 20, 2008, Anneliese Scherrer called the police, claiming

that she had been a victim of domestic violence, and met the police officers responding to

her call at a convenience store. She falsely identified herself to them as “Jasmine

Williams,” and told them that Livingston, her boyfriend with whom she lived, had just hit

her on the face and threatened to pistol whip her. The officers noticed swelling on her

face, which corroborated her story, and told her they would go to the apartment and arrest

him.

       Scherrer told the officers that Livingston was drunk and high on cocaine, and that

he was very violent, was afraid of being robbed, and had a gun under the bed. Without

being asked, she gave the officers a key to the apartment; they did not ask her for any


                                              5
identification or proof that she lived there. One of the officers ran a background check on

Livingston and discovered that he had several prior arrests for drugs and violent crimes.

       The two officers who met with Scherrer were joined by three back-up officers, and

they entered the apartment through the back door using Scherrer‟s key. One officer

announced their entry and demanded several times that Livingston show himself.

Livingston came out of a doorway directly in front of the officers, and an officer told him

he was under arrest and to get on the floor. After standing in the doorway for several

seconds, Livingston started moving to the side. An officer “amped up” his instructions to

Livingston, and he eventually laid down. (Id. at 134.)

       One officer moved in to restrain Livingston, and another officer checked the room

to make sure no one else was there. There was an inflated air mattress about four to six

feet away from Livingston, and when an officer kicked it, it bounced into the air, and a

gun was seen. The officers testified that Livingston was in the process of being restrained,

but was not yet handcuffed, when the gun was discovered.

       After he was placed in the back of a police car and informed of his Miranda rights,

Livingston told the police that “Jasmine Williams” was Scherrer‟s alias and that she had

outstanding warrants for her arrest. Scherrer later called the police of her own accord, an

officer met her at the apartment, and she was arrested. After her arrest, she told law

enforcement that Livingston confessed to her that he had committed robberies, some of

which were at issue in this case.


                                             6
       Based on information received from Scherrer regarding Livingston‟s robbery

activity, as well as items that she said were in their apartment that matched descriptions of

items stolen from Dobson and Aquil, law enforcement obtained a warrant to search the

apartment. The affidavit of probable cause that supported the warrant did not, however,

mention that Scherrer had initially lied to the police about her identity, had several

outstanding warrants for her arrest, and gave law enforcement information about

Livingston‟s robberies only after they arrested her.

       The District Court denied Livingston‟s motion for a Franks hearing regarding the

omissions from the affidavit of probable cause, and denied his motion in limine to

preclude Scherrer from testifying about his participation in uncharged robberies.

II.    ANALYSIS2

       A.     Motion to Suppress

       Livingston moved to suppress the gun that was seized at his apartment during the

warrantless search at the time of his arrest. He argues that the police did not have consent

or another basis to justify their warrantless entry, and also contends that the search that

led to the discovery of the gun under the air mattress exceeded the scope of a search

incident to arrest. The District Court denied the motion to suppress as to both of these

arguments. “We review the denial of a suppression motion for clear error as to the

underlying facts, but exercise plenary review as to its legality in light of the district


       2
         The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                              7
court‟s properly found facts.” United States v. Coles, 437 F.3d 361, 365 (3d Cir. 2006).

       Law enforcement officials may search a home without a warrant when “voluntary

consent has been obtained, either from the individual whose property is searched, or from

a third party who possesses common authority over the premises.” Illinois v. Rodriguez,

497 U.S. 177, 181 (1990) (citations omitted). The District Court found that Scherrer told

the officers that she lived in the apartment, and that she gave them a key and said that it

opened the back door. The Court did not clearly err in finding these facts, and based on

them, the Court correctly held “that Scherrer had actual authority over the dwelling and

consented for the officers to enter the residence.” (App. at 19.)

       With respect to the discovery of the gun, “[a] legitimate search incident to arrest is

limited to the arrestee‟s person and to the area within his immediate control, meaning the

area from which he might gain possession of a weapon or destructible evidence.” United

States v. Myers, 308 F.3d 251, 267 (3d Cir. 2002) (internal quotation marks omitted). The

District Court found that “the [arresting] officers had reason to believe that Livingston

was armed and dangerous,” that he “was arrested approximately four to six feet from the

location where his firearm was retrieved,” and that when the officer “discovered the

weapon, Livingston was not yet fully restrained.” (App. at 22.) The Court also credited an

officer‟s testimony that during the time in which Livingston was not “fully restrained,” he

“was „definitely within an area where he could lunge towards a weapon.‟” (Id. (quoting

id. at 135).)


                                              8
       The District Court did not clearly err in any of these factual findings, and we will

affirm its conclusion that the gun was discovered and seized during a legitimate search

incident to arrest because it was found in an area close to Livingston before he was

handcuffed.

       B.     Motion for a Franks Hearing

       Livingston moved for a Franks hearing. He argued that the affidavit of probable

cause that supported the search warrant for his apartment was defective because it did not

disclose the facts about Scherrer‟s lies, her outstanding warrants, and the timing of her

revelation to law enforcement – after her arrest – regarding his robberies. It was

Livingston‟s burden to “make a „substantial preliminary showing‟ that the affidavit

contained a false statement [or omission], which was made knowingly or with reckless

disregard for the truth, which is material to the finding of probable cause.” United States

v. Yusuf, 461 F.3d 374, 383 (3d Cir. 2006) (quoting Franks, 438 U.S. at 171). For the

omission to be “material,” the court must conclude “that probable cause does not exist

under the corrected affidavit.” Id. “[W]hen faced with an omission, the court must remove

the falsehood created by an omission by supplying the omitted information to the original

affidavit.” Id. at 384 (internal quotation marks omitted).

       The District Court held “that inclusion of the omitted information does not deprive

the warrant of probable cause” because “Scherrer accurately described the unique

circumstances of the offenses for which Livingston was indicted, and identified as being


                                              9
present in Livingston‟s home several items reported stolen by the victims of Livingston‟s

crimes and articles of clothing allegedly worn by Livingston during commission of the

offense.” (App. at 36.) Concluding that Livingston did not make a substantial preliminary

showing that the omitted statements regarding Scherrer were material, the Court denied

the motion for a Franks hearing. Because the Court based its ruling on the facts in the

affidavit, we exercise plenary review over that decision. United States v. Shields, 458

F.3d 269, 276 (3d Cir. 2006).

       We agree with Livingston that “[a]nyone trying to make a determination whether

Scherrer was a legitimate source of information would want to know about her recent and

continuous efforts to deceive the police.” (Appellant‟s Br. at 27.) But what the magistrate

judge “would want to know” is not the standard we set in Yusuf. The central question is

instead whether, when the omitted facts are added to the affidavit, probable cause would

still exist, and we agree with the District Court that it would, given the factual similarities

between the reports of Dobson and Aquil, on the one hand, and Scherrer, on the other.

       C.     Motion in Limine Regarding Other Robberies

       The District Court denied Livingston‟s motion in limine under Federal Rule of

Evidence 404(b) to exclude Scherrer‟s testimony regarding various uncharged robberies.

The Court rejected the government‟s contention that the other robberies were direct proof

of the conduct charged in the conspiracy, but it concluded that testimony as to them was

“admissible to show Livingston‟s motive, intent, and purpose for participating in the


                                              10
robberies with which he is charged,” as well as his “knowledge of the conspiracy, insofar

as the charged and uncharged robberies were committed in similar fashion.” (App. at 40-

41.) We review that decision for abuse of discretion, and will reverse only if it was

“clearly contrary to reason and not justified by the evidence.” United States v. Balter, 91

F.3d 427, 437 (3d Cir. 1996) (internal quotation marks omitted).

       At trial, Scherrer testified that Livingston “admitted to [her] that he was involved

in multiple other robberies.” (App. at 404.) She described his admissions regarding a

robbery that involved a “drug dealer target,” demanding drugs and money from the drug

dealer‟s girlfriend, threats to sexually assault the girlfriend‟s daughter, and actually

sexually assaulting the girlfriend. (Id. at 404-06.) She testified he told her that in another

robbery a girl and her mother were told that they would be forced “to have oral sex if they

didn‟t tell him where the drugs and money were.” (Id. at 407.) Scherrer also said that she

found a large amount of marijuana in the apartment after that robbery.

       Livingston contends that the statements Scherrer attributed to him regarding these

two robberies “could have been nothing more than a figment of his imagination” and that

the acts she described “were never proven by the Government.” (Appellant‟s Br. at 30.)

He argues that the only reason to admit this testimony was to show that he “was a person

of bad character,” and that this testimony was “unfairly prejudicial.” (Id.) But assuming,

as we must, that the jury credited this testimony, that testimony was admissible to show

that Livingston had, at minimum, a motive and intent to target drug dealers. There was


                                              11
no abuse of discretion here, although the references to sexual assault and threats of sexual

assault likely should have been avoided.

       D.     Motion in Limine Regarding Identification

       Livingston moved to exclude Dobson‟s identification, arguing that the procedure

that resulted in the identification was unnecessarily suggestive. The District Court denied

that motion, and Dobson identified him in front of the jury. We review this decision for

abuse of discretion. United States v. Brownlee, 454 F.3d 131, 137 (3d Cir. 2006). A

defendant‟s due process rights are violated when an identification procedure is “both (1)

unnecessarily suggestive and (2) creates a substantial risk of misidentification.” Id. There

are two parts to examining whether an identification procedure is unnecessarily

suggestive: (1) whether the procedure was, indeed, suggestive and (2) “whether there was

some good reason for the failure to resort to less suggestive procedures.” Id. (internal

quotation marks omitted).

       The District Court concluded that the identification procedure at the preliminary

hearing was suggestive, but nonetheless permitted Dobson‟s identification testimony at

trial because the procedure was not unnecessarily suggestive. The Court reasoned that

law enforcement did not know or have any reason to believe that Dobson could identify

Livingston in a setting less suggestive than at the preliminary hearing because she had

consistently said that she could not identify the robbers at all. There was, therefore, a

“good reason” for the failure to use less suggestive procedures. We agree with the


                                             12
District Court‟s reasoning and conclude that the Court did not abuse its discretion.3

       E.     Effect on Interstate Commerce

       For Livingston to be guilty of robbery under the Hobbs Act, the government must

have proven, among other things, that he “in any way or degree obstruct[ed], delay[ed], or

affect[ed] commerce or the movement of any article or commodity in commerce.” 18

U.S.C. § 1951(a). The term “commerce” is defined, among other things, as “all commerce

between any point in a State . . . and any point outside thereof” (“interstate commerce”).

18 U.S.C. § 1951(b)(3).

       Livingston claims that there was insufficient evidence for the jury to conclude that

the two Hobbs Act robberies with which he was charged, and the associated conspiracy,

affected interstate commerce. He contends that the District Court, therefore, did not have

jurisdiction over those counts, and that the jury erred in convicting him. The government

argues that the robberies affected interstate and international drug trade because there was

evidence that Aquil and Kitt were drug dealers, and there was expert testimony that

almost all of the primary illegal drugs sold in Harrisburg – heroin, cocaine, and crack, as

well as marijuana for large-volume dealers – came from outside Pennsylvania.

       “We will sustain the verdict if any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” United States v. Urban, 404

F.3d 754, 762 (3d Cir. 2005) (internal quotation marks omitted). In this Circuit, “proof of


       3
        We need not reach the issue of whether there was a substantial likelihood of
misidentification.
                                          13
a potential effect [on interstate commerce] is all that is required under the Hobbs Act,”

and that potential effect need only be “de minimis.” Id. at 764, 766 (internal quotation

marks omitted). Livingston does not claim that stealing from drug dealers is insufficient

under the Hobbs Act to show an effect on interstate commerce. He argues, instead, that

there was insufficient evidence for the jury to conclude that the victims of his robberies

were drug dealers.

       At trial, the jury heard testimony that Aquil was unemployed and supported

himself by hustling, which his mother explained was “a problem with drugs and alcohol.”

The jury also heard Kitt admit that he pled guilty to a drug charge that spanned the date of

his robbery. From this evidence, a rational juror could have concluded that Aquil and Kitt

were drug dealers, and that Livingston at least attempted to rob Aquil4 and actually

robbed Kitt. Combined with expert testimony regarding the out-of-state sources for the

bulk of the illegal drugs sold in Harrisburg, a rational juror could also have concluded

that the robberies had a potential, de minimis effect on interstate commerce. There was,

therefore, sufficient evidence to convict Livingston of two counts of Hobbs Act robbery,

as well as conspiracy, and Livingston‟s jurisdictional argument fails.


       4
        Livingston contends that there is no evidence that the items he stole from
Dobson‟s home were connected to drugs or drug proceeds, but he was also charged with
and convicted of attempt to commit robbery, and “[t]he Hobbs Act, by its own terms,
encompasses the inchoate offenses of attempt and conspiracy to extort” – and, by
extension, to rob. United States v. Jannotti, 673 F.2d 578, 592 (3d Cir.1982) (en banc),
most recently quoted in United States v. Manzo, 636 F.3d 56, 66 (3d Cir. 2011). There
was more than sufficient evidence for a rational juror to conclude that he attempted to rob
Aquil, even if the items he ultimately stole were solely Dobson‟s.
                                              14
III.   CONCLUSION

       We will affirm the judgment of sentence.




                                          15
