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


4-8-2004

USA v. Haywood
Precedential or Non-Precedential: Precedential

Docket No. 01-4086




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"USA v. Haywood" (2004). 2004 Decisions. Paper 750.
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         PRECEDENTIAL                     Attorneys for Appellee
    UNITED STATES COURT OF
            APPEALS                                       OPINION
     FOR THE THIRD CIRCUIT
                                          McKEE, Circuit Judge.
             No. 01-4086
                                                 Ira H aywood appeals his
   UNITED STATES OF AMERICA               convictions for robbery under Virgin
                                          Islands law and for several federal charges
                   v.                     arising out of that robbery. For the reasons
                                          that follow, we will affirm his robbery
           IRA HAYWOOD,                   conviction and his convictions for the
                                          federal crimes of interference with
                        Appellant         commerce by robbery and possession of a
                                          firearm during a crime of violence.
 Appeal from the United States District   However, we will reverse his conviction
                   Court                  for possession of a firearm with an
           for the Virgin Islands         obliterated serial number and remand for a
        (Crim. No. 00-cr-0029-2)          new trial. We will also reverse his
 District Judge: Hon. Thomas K. Moore     conviction for possession of a firearm
                                          within 1000 feet of a school but remand
        Argued: April 28, 2003            with a direction to enter a judgment of
                                          acquittal on that charge.
 Before: ROTH, McKee and COWEN,
           Circuit Judges                                 I. FACTS

         (Filed: April 8, 2004)                    Viewed in the light most favorable
                                          to the government, the trial evidence
STEPHEN A. BRUSCH, ESQ. (Argued)          showed that on December 28, 1999, at
28-29 Norre Gade, 2nd Floor               approximately 8:00 p.m., America’s Bar
P.O. Box 988                              and Poolroom, located in St. Thomas,
St. Thomas, U.S.V.I. 00804                United States Virgin Islands, was robbed.
Attorney for Appellant                    The owner, America Santiago, and a
                                          customer, Carmen Rodriquez, were in the
DAVID M. NISSMAN, ESQ.                    bar at the time. Santiago testified that two
United States Attorney                    masked men entered the bar carrying
NELSON L. JONES, ESQ. (Argued)            firearms. Santiago described one firearm
Assistant United States Attorney          as very big and one as smaller. She also
U.S. Courthouse & Federal Building        described one robber as being “short and a
5500 Veterans Drive, Suite 260            little strong,” and the other as “tall, but a
Charlotte Amalie, St. Thomas, U.S.V.I.    little darker.” She testified that the men
00802                                     demanded money and fled with
approximately $40 to $60 in bills and             time of his initial call until he saw the
approximately $10 in coins.1                      police approaching. He saw the green car
                                                  with the two men inside stop at a stop light
       Rodriquez testified that she saw two       before making a left turn and heading in an
masked men come into the bar and                  easterly direction. Charles conveyed this
demand money. The men entered with two            information to the police and watched as
guns, a big one and a small one. She said         the police chased the green car with the
she was scared and threw $15 at the               two men inside. However, Charles was
masked robbers.                                   unable to identify the two robbers in court.

        Duke Charles, a cab driver who                   Virgin Islands Police Officer
lives next door, approximately fifty feet         Alphonso Boyce testified that he and
from the bar, saw two men standing                Officer Conrad Gilkes heard the radio
outside the bar at approximately 8:00 p.m.        transmission regarding a robbery in
on the night of the robbery. One man              progress and proceeded to the area.
pulled a small black gun from his waist,          Boyce also heard the subsequent
and the two men then entered the bar.             transmission regarding the direction of
Charles testified that the two men wore           the green car. He then saw the car and
white T-shirts and were not wearing masks         gave chase.
when he saw them enter the bar. He
immediately called the police on his cell                The green car eventually crashed
phone, then ran upstairs to the roof of the       into a pole in the area of the Enid Bea
building. He testified that from the roof,        Public Library. Ira Haywood, the driver,
he heard voices saying, “This is a hold-up.       and Kevin White, the passenger, were
Give me the money.”          Charles also         ordered out of the car. When Haywood
testified that he saw the men leave the bar       got out, Boyce saw part of a gun fall from
and walk up the street towards the Tower          Haywood’s waist. A search of the car
Apartments. Shortly thereafter, Charles           disclosed the bottom portion of the
observed a green car come down the street         firearm, a shotgun, ammunition, a ski
carrying the same two men that he had             mask, gloves, tools and numerous coins.
observed entering and leaving the bar.            Sandra Koch, a Federal Bureau of
Charles was in constant contact with the          Investigation hair and fiber expert, later
Virgin Islands Police Department from the         matched hair fiber samples from Haywood
                                                  with hair fiber found in the ski mask
                                                  recovered from the car.
    1
      Santiago also testified that she sold
                                                        Virgin Islands Police Detective
liquor, Heineken beer and Coors Light
                                                  David Monoson found a shotgun
beer at the bar. As we will discuss below,
                                                  between the seats of the car Haywood
this is important for purposes of federal
                                                  was driving. A firearm frame and
jurisdiction.

                                              2
magazine were also found under the                possession of a firearm with an obliterated
driver’s seat. Monoson testified that $15         serial number, in violation of 18 U.S.C. §§
was found on the dash board of the car,           922(k) and 924(a)(1)(B); Count Six
$27 was removed from blue pants on the            charged White with possession of a
pavement outside the car and coins were           shotgun during (and in relation to) a crime
found on the driver’s side of the car.            of violence, in violation of 14 V.I.C. §
Monoson further testified that the serial         2253(a); Count Seven charged both with
numbers from the shotgun and handgun              possession of a firearm within a thousand
had been obliterated, and that the                feet of a school, in violation of 18 U.S.C.
handgun had been manufactured in                  §§ 922(q)(2)(A) and 2. Counts Eight,
California and the shotgun had been               Nine and Ten charged Haywood with
manufactured in Connecticut.                      separate offenses occurring before the
                                                  robbery of the bar. Those counts were
        Virgin Islands Police Detective           severed and subsequently dismissed
Warrington Tyson later measured the               without prejudice.
distance from America’s Bar to the Ulla
Muller Elementary School. That                            Virgin Islands Police Detective
distance was 421 feet, 4 inches. Tyson            Darren Foy testified that the bar is a
testified that he took the measurement            business established in the Virgin Islands
from the bar to the entrance gate of the          selling liquor and beer as well as non
school.                                           alcoholic beverages. He also testified
                                                  that the products sold at the bar,
       On March 2, 2002, Haywood and              specifically, Heineken beer and Miller
White were charged in a ten count                 beer, come from mainland United States.
superseding indictment with the following
violations: Count One charged both                       Haywood and White testified in
Haywood and White with interference               their own defense, and both denied
with commerce, in violation of 18 U.S.C.          participating in the robbery. Haywood
§§ 1951 and 2; Count Two charged                  claimed that he did not stop the car he
Haywood with possession of a firearm              was driving when chased by police
during the commission of a crime of               because he had marijuana and was afraid
violence, in violation of 18 U.S.C. §§            that he would be arrested on drug
924(c)(1) and 2; Count Three charged              charges.
White with possession of a short barreled
shotgun during (and in relation to) a crime             The jury found Haywood and
of violence, in violation of 18 U.S.C. §§         White guilty as charged. Haywood was
924(c)(1) and 2; Count Four charged both          sentenced to a total period of
with robbery in the first degree, in              imprisonment of 125 months, and then
violation of 14 V.I.C. §§ 1862(2) and 11;
Count Five charged Haywood with

                                              3
filed this appeal. 2                                convictions, on Counts One, Two, Five
                                                    and Seven, must be reversed because there
             II. DISCUSSION                         was insufficient evidence that he robbed
                                                    the bar. He begins by noting that neither
      Haywood makes a number of                     Santiago nor Rodriquez could identify him
arguments in his appeal. Each is                    as one of the robbers. He then argues that
considered separately below.                        the only evidence connecting him to the
                                                    robbery was Charles’s testimony that the
A. Insufficient Evidence of Robbery.3               car carrying the robbers was the same car
      Haywood argues that all of his                that Charles told the police to follow, and
                                                    the police officers’ testimony that the car
      2
                                                    they followed at the start of the chase was
      White also filed an appeal. We                the same car that crashed into the library.
affirmed his judgment of conviction and              Accordingly, Haywood claims that the
sentence on June 14, 2002.                          only established facts are that the bar was
       3                                            robbed and that he was driving a green car
        “In reviewing a jury verdict for
                                                    that crashed into the library. He contends
sufficiency of the evidence, we must
                                                    that all of the other evidence was
consider the evidence in the light most
                                                    circumstantial and lacked a logical and
favorable to the government and affirm the
                                                    convincing connection to the established
judgment if there is substantial evidence
                                                    facts.
from which a rational trier of fact could
find guilt beyond a reasonable doubt.”
                                                             In support of his claim of
United States v. Brown, 3 F.3d 673, 680
                                                    insufficient evidence, Haywood notes
(3d Cir. 1993) (citation and internal
                                                    that Charles testified that he saw only
quotations omitted).       “In determining
                                                    one small gun, which was removed from
whether evidence is sufficient, we will not
                                                    the waistband of one of the men right
weigh the evidence or determine the
                                                    before they entered the bar. Haywood
credibility of witnesses. . . . Appellate
                                                    claims that since Charles could see one
reversal on the grounds of insufficient
                                                    of the men enter the bar with a small gun,
evidence should be confined to those cases
                                                    it is inconceivable that he would not also
where the failure of the prosecutor is clear.
                                                    have seen the shotgun used by the other
The evidence need not be inconsistent with
                                                    man. Yet, Charles never testified about
every conclusion save that of guilt, so long
                                                    the other man carrying a shotgun.
as it establishes a case from which a jury
                                                    Moreover, Charles testified that both
could find the defendant guilty beyond a
                                                    men were unmasked before they entered
reasonable doubt. . . . A defendant
                                                    the bar, but Santiago and Rodriquez
challenging the sufficiency of the evidence
                                                    testified that the robbers were masked
bears a heavy burden.” United States v.
                                                    when they entered the bar. Further,
Casper, 956 F.2d 416, 421 (3d Cir. 1992)
                                                    while Charles testified that the robbers
(citations omitted).

                                                4
wore white T-shirts, neither Santiago nor          reasonably conclude beyond a reasonable
Rodriquez gave a description of the                doubt that Haywood was the shorter of the
clothes the robbers were wearing. In               two men and that the shorter man had the
addition, Officer Boyce testified that the         smaller firearm.
change found at the scene of the arrest
was in quarters, nickels and dimes, while                 Charles called the police on his
Santiago testified that the $10 in change          cell phone while he was still observing
she gave to the robbers was only in                the two men he saw outside of the bar.
quarters. In addition, Boyce testified that        He was still watching as they went into
the car that he followed was blue, but             the bar with guns. He then ran up to the
Charles testified that the car he told the         top of his building where he said he
police to follow was green. Finally,               could see the entire area. He testified that
Haywood argues that Boyce testified that           he heard someone say “Give me money.
the slide of a gun fell out of Haywood’s           This is a holdup.” Charles watched the
waistband when Haywood got out of the              men as they left the bar and made a left
car. However, Detective Monoson                    turn into some condominiums. He then
testified that he was told that the slide          saw them coming down the street full
was thrown out of the car during the               speed in a green car. They stopped at a
pursuit. In Haywood’s view, the lack of            stoplight because there was another car
direct evidence linking him to the                 in front of them, and then turned left.
robbery together with the inconsistent             Charles then saw the police car and told
circumstantial evidence demonstrates               them that the robbers were making a left
that there was insufficient evidence to            turn. He continued watching as the
sustain his conviction for robbery.                police started chasing the car with the
Therefore, all convictions must be                 two robbers in it.
reversed. We disagree. There was more
than sufficient evidence to sustain                        Boyce’s testimony establishes that
Haywood’s robbery conviction.                      the car he stopped was the same one that
                                                   Charles saw. Boyce told the occupants to
       The fact that neither Santiago nor          get out of the car and Haywood, the driver,
Rodriguez could identify Haywood as one            did as instructed. When he got out, the
of the robbers is unremarkable given that          slide for the top of a gun dropped to the
both women testified that the men who              ground from inside Haywood’s waistband.
robbed the bar were masked. As noted                The car was searched and the bottom half
above, the evidence showed that two                of the gun that went with the slide was
masked men, each carrying a firearm,               recovered, as well as a ski mask, gloves
robbed the bar. One firearm was smaller            and ammunition. Several coins had fallen
than the other. One man was short and              from the car as well.
strong and the other was taller but a little
darker. Testimony allowed this jury to                    Lucy Krigger, the police dispatcher,

                                               5
testified that Charles gave the police the               obliterated, or altered and
license plate number of the car the robbers              has, at any time, been
were driving. As noted, Koch, the FBI                    shipped or transported in
witness, testified that a hair sample taken              interstate or foreign
from Haywood matched the hair found in                   commerce.
the ski mask.4
                                                  The district court instructed the jury on the
       Given this testimony as well as the        § 922(k) charge as follows:
testimony about the shot gun that was                    First, that on the same day,
recovered, it is disingenuous to claim that              December 28 of last year,
the evidence was insufficient to convict                 here in St. Thomas, Ira
Haywood of robbing the bar.                              Haywood knowingly
  B. Possession of a Firearm with an                     possessed a firearm, that is,
Obliterated Serial Number.                               a .380 Davis Industries
       Haywood was also convicted of                     pistol, which firearm at
Count Five, possession of a firearm with                 some point in time had been
an obliterated serial number. Title 18                   transported in interstate
U.S.C. § 922(k) provides:                                commerce, and from which
       It shall be unlawful for any                      the manufacturer’s serial
       person knowingly to                               number had been removed
       transport, ship, or receive,                      and obliterated.
       in interstate or foreign
       commerce, any firearm                      App. 506-07. Haywood argues that the
       which has had the                          district court’s instruction was erroneous
       importer's or                              because it did not require the government
       manufacturer's serial                      to prove beyond a reasonable doubt that
       number removed,                            Haywood knew that the serial number on
       obliterated, or altered or to              the pistol had been obliterated when he
       possess or receive any                     possessed it.
       firearm which has had the                          Title 18 U.S.C. § 924(a)(1)(B)
       importer's or                              governs the penalty provisions for
       manufacturer's serial                      violations of § 922. “In 1986 Congress
       number removed,                            enacted the Firearms Owners’ Protection
                                                  Act, which modified the penalty provisions
                                                  of 18 U.S.C. § 924. . . . Where the
  4                                               preexisting statute had provided criminal
    The jury could certainly conclude that,
                                                  penalties for ‘[w]hoever violates any
given the climate and the amount of snow
                                                  provision of this chapter,’ . . . the amended
that falls in St. Thomas, Haywood did not
                                                  version, insofar as here relevant, imposes
have a ski mask because he was on his
                                                  criminal penalties on ‘whoever knowingly
way to or from the slopes.

                                              6
violates subsection . . . (k) . . . of section       that affects substantial rights. If all three
922.’” United States v. Haynes, 16 F.3d              conditions are met, an appellate court may
29, 33-4 (2d Cir. 1994) (citations omitted)          then exercise its discretion to notice a
(emphasis in original). The courts of                forfeited error, but only if (4) the error
appeals that have considered the issue after         seriously affects the fairness, integrity, or
this amendment became effective have all             public reputation of judicial proceedings.”
held that a § 922(k) conviction now                  Johnson v. United States, 520 U.S. 461,
requires not only knowing possession of              467 (1997) (citations, internal quotations
the firearm, but also knowledge that the             and brackets omitted). In the case of an
serial number on the firearm had been                erroneous jury instruction, “the relevant
obliterated.      See United States v.               inquiry . . . is whether, in light of the
Abernathy, 83 F.3d 17, 19 n.1 (1st Cir.              evidence presented at trial, the failure to
1996); United States v. Fennell, 53 F.3d             instruct had a prejudicial impact on the
1296, 1300-01 (D.C. Cir. 1995); United               jury’s deliberations, so that it produced a
States v. Haynes, 16 F.3d at 34; United              miscarriage of justice.” United States v.
States v. Hooker, 997 F.2d 67, 72-74 (5th            Xavier, 2 F.3d 1281, 1287 (3d Cir. 1993)
Cir. 1993).        Thus, pursuant to the             (citations and internal quotations omitted).
amendment, knowledge that the serial                 “In other words, did the error seriously
number is obliterated at the time of                 affect the fairness, integrity or public
possession is an element of the offense of           reputation of judicial proceedings?” Id.
a § 922(k) violation. We therefore hold              (citation, internal quotations and brackets
that the time of the weapon’s possession is          omitted). Although we have not adopted
an element of a violation of § 922(K).               a per se rule, we have held that “the
Accordingly, the district court’s instruction        omission of an essential element of an
was erroneous.                                       offense [in a jury instruction] ordinarily
                                                     constitutes plain error.” Id. (citation
       However, Haywood’s trial counsel              omitted) (emphasis in original). “[This] is
did not object to the instruction, and               consistent with the Supreme Court’s
therefore Haywood must establish plain               instruction that due process requires ‘proof
error.5 United States v. Olano, 507 U.S.             beyond a reasonable doubt of every fact
725, 734-735 (1993). “Under [the plain               necessary to constitute the crime with
error] test, before an appellate court can           which [the defendant] is charged.’” Id.
correct an error not raised at trial, there          (quoting In re Winship, 397 U.S. 358, 364
must be (1) error, (2) that is plain, and (3)        (1970)).

                                                             Here, the district court’s failure to
        5                                            instruct the jury that knowledge of the
         Had Haywood objected to the
                                                     obliterated serial number is an element of
instruction, this issue would be subjected
                                                     the crime undoubtedly had an effect on the
to a harmless error analysis. Neder v.
                                                     jury’s deliberations. “[T]he jury could not
United States, 527 U.S. 1, 7-15 (1999).

                                                 7
have been expected to make a finding                 charged.” In re Winship, 397 U.S. 358,
beyond a reasonable doubt as to                      364 (1970). Speculation about what the
[Haywood’s knowledge of the obliterated              jury could have done if properly
serial number] in the absence of an                  instructed falls woefully short of that
instruction to do so.” Xavier, 2 F.3d at             burden.
1287. Therefore, the inquiry becomes                         Accordingly, we find that the
whether the failure to instruct was                  district court’s failure to instruct the jury
prejudicial, i.e., did the failure to instruct       on the element of knowledge of the
on knowledge affect Haywood’s due                    obliterated serial number amounted to
process rights in a manner that “‘seriously          plain error. Therefore, we will reverse the
affect[ed] the fairness, integrity or public         conviction on Count Five and remand for
reputation of judicial proceedings.’” Id.            a new trial.
(quoting Olano, 507 U.S. at 736.
                                                     C. Possession of a Firearm in a School
        We believe it did. The                       Zone.
government argues that because                               Haywood was also convicted on
Haywood possessed the pistol, hid it on              Count Seven – possession of a firearm
his person and used it in a robbery, the             within 1000 feet of a school zone. That
jury could reasonably infer that Haywood             statute provides:
would have examined the pistol at some
point before the robbery to see if it                       It shall be unlawful for any
worked. In addition, the government                         individual knowingly to
notes that at some point after the robbery,                 possess a firearm that has
Haywood disassembled the pistol.                            moved in or that otherwise
Therefore, given these considerations,                      affects interstate or foreign
the jury could have reasonably inferred                     commerce at a place that the
that Haywood discovered that the pistol’s                   individual knows, or has
serial number had been obliterated. That                    reasonable cause to believe,
is true. The jury could have found                          is a school zone.
beyond a reasonable doubt that Haywood
knew the gun had an obliterated serial               18 U.S.C. § 922(q)(2)(A). A “school
number had it been instructed of the need            means a school which provides elementary
to do so under § 922(k). However, no                 or secondary education, as determined
such instruction was given and the                   under State law.” 18 U.S. C. § 921(a)(26).
government’s argument about the jurors’              “[S]chool zone” is defined to mean: “in,
thought process therefore rests upon pure            or on the grounds of, a public, parochial or
speculation. Haywood has a due process               private school” or “within a distance of
right to “proof beyond a reasonable                  1,000 feet from the grounds of a public,
doubt of every fact necessary to                     parochial or private school.” 18 U.S.C. §
constitute the crime with which [he] is              921(a)(25)(A), (B).

                                                 8
        Haywood argues that th e                    measurements were taken,
government failed to prove that he knew or          the wheel that is attached,
had reason to believe that he possessed a           affixed to the stick, there’s a
firearm in a school zone as required under          little box in the top, and as
the statute. We agree.                              you push the wheel it rolls
        As noted earlier, Detective Tyson           the numbers around. So it
testified that he measured the distance             gives you, as the wheel is
from America’s Bar and Poolroom to the              rolling, it measures the
Ulla Muller Elementary School to be 421             distance as it goes from one
feet, 4 inches. Tyson also testified that the       point to the other.
measurement was taken from the bar to the
school’s entrance gate. However, the                Q: Okay. So, to take the
location of the bar in relation to the school       measurement, did you walk
is not clear from the evidence. There is            around, from America’s Bar
nothing to show whether they share the              around the corner all the
same frontage or are around the corner              way round to Ulla Muller
from each other or whether all approaches           School?
to the “school zone” are clearly marked.
Therefore, the evidence did not establish           A: It was measured from the
whether Haywood necessarily would have              building into the entrance of
seen the school on the way to or from the           the school, just within the
bar. Tyson testified on cross-examination           gates.
as follows:
        Q: The device you used to                   THE COURT: Is that line
        measure the distance to the                 of sight? Can you see
        school, is that a line of sight             straight?
        device measurement?
                                                    THE WITNESS: Yes, you
       A: No. The measurement, I                    can. You can.
       explained it already,6 the
                                                    BY [Defense Counsel]:

   6                                                Q: So you went in a straight
     On direct examination, Officer Tyson
                                                    line. Was that on a road or
testified that he used measuring equipment
                                                    did you have to go through
known as a “Monson Company, Model
                                                    bush?
1212,” and said “[i]t’s like a long piece of
stick with a wheel attached to the end that
                                                    A: That would be on the
the traffic officers use when they’re taking
                                                    road.
measurements in traffic accidents.” App.
at 303-304.

                                                9
App. at 304-05 (emphasis added).                        Q: You live in Tutu, but you
                                                        know where America’s Bar
       However, the government did not                  is, you said?
produce any evidence of any school zone
signs or similar identification that would              A: Yes, sir. St. Thomas is
support the inference that Haywood should               very small.
have known that a school was within 1000
feet of the bar. Nor did the government                 Q: And you know how to
produce any evidence that Haywood had to                get to America’s Bar?
pass by the school to get to or from the
bar.                                                    A: Yes, sir.

       Indeed, the only evidence offered                Q: And you know how to
by the government in its attempt to prove               get from America’s Bar?
that Haywood should have known that the
school was within 1000 feet of the bar is               A: Yes, sir.
the following excerpt from his cross-
examination testimony:                                  Q: You know where the
       Q: But you know where                            Towers are?
       America’s Bar is, right?
                                                        A: Yes, sir.
       A: Yes, Sir.
                                                        Q: You know how to get
       Q: You know where it is?                         there?

       A: Where it is?                                  A: Yes, sir.

       Q: Yeah.                                   App. at 360-61. Based on this cross-
                                                  examination testimony, the government
       A: It’s by, across the street              contends that the “jury could have drawn
       from Nisky Center. It have                 the reasonable inference that, since
       a big sign saying America’s                [Haywood] knew the surrounding area of
       Bar.                                       America’s Bar he knew or should have
                                                  known the Ulla Muller Elementary
       Q: And you know it well,                   School was within 1000 feet of the bar.”
       right?                                     Government’s Br. at 26. However, we
                                                  think it shows the opposite. Haywood
       A: No. I don’t live down on                testified that he did not know the area
       that side. I live in Tutu.                 well because he lived in a different part
                                                  of St. Thomas, and the trial testimony

                                             10
can not be fairly interpreted as                          physical violence to any
establishing that he knew the area well;                  person or property in
only that he knew how to get there.                       furtherance of a plan or
Consequently, only rank conjecture                        purpose to do anything in
supports a conclusion that Haywood                        violation of this section
knew or should have known that the bar                    shall be fined under this title
was within 1000 feet of the school. This                  or imprisoned not more than
is particularly true because the                          twenty years, or both.
government never even tried to establish
whether all approaches to the bar                  18 U.S.C. § 1951. To sustain a conviction
necessarily pass the school or whether             for interference with commerce by robbery
the area is marked as a “school zone.”             under § 1951, the government must prove
                                                   the element of interference with interstate
       In truth, the only evidence that the        or foreign commerce by robbery. See
government produced to support this                Stirone v. United States, 361 U.S. 212, 218
conviction is that the school is, in fact,         (1960).     “The charge that interstate
within 500 feet of the bar. However, that          commerce is affected is critical since the
is not sufficiently conclusive to enable a         Federal Government’s jurisdiction of this
reasonable juror to draw the inference that        crime rests only on that interference.” Id.
Haywood knew or should have known of               However, “[i]f the defendants’ conduct
that proximity. Accordingly, there is              produces any interference with or effect
insufficient evidence to support the               upon interstate commerce, whether slight,
conviction on Count Seven. Therefore, we           subtle or even potential, it is sufficient to
will vacate the conviction and remand with         uphold a prosecution under [§ 1951].”
directions to enter a judgment of acquittal        Jund v. Town of Hempstead, 941 F.2d
on that Count.                                     1271, 1285 (2d Cir. 1991). Moreover, “[a]
                                                   jury may infer that interstate commerce
 D. Interference with Commerce by                  was affected to some minimal degree from
Robbery.                                           a showing that the business assets were
                                                   depleted.” United States v. Zeigler, 19
      18 U.S.C. § 1951 (Count One)                 F.3d 486, 493 (10th Cir. 1994).
provides:
      Whoever in any way or                               The district court’s jury
      degree obstructs, delays, or                 instruction on the interference with
      affects commerce or the                      commerce by robbery charge provided
      movement of any article or                   that
      commodity in commerce, by                           if the government proves
      robbery or extortion or                             beyond a reasonable doubt
      attempts or conspires so to                         that this business purchased
      do, or commits or threatens                         goods or services that came

                                              11
              from outside St.                      Heineken and Miller beer sold at the bar.
              T h o m a s , Virgin                  Therefore, the jury did not know if Foy’s
              Islands, and that,                    testimony about the Heineken and Miller
              therefore, all or part                beer was based on information Foy
              o f t h e p e rsonal                  received from Santiago, the bar’s owner,
              property obtained                     or if Foy had himself been to the bar at an
              from this business,                   earlier time and knew that the products
              because of the                        came from the mainland, or if Foy just
              a l l eg e d r o b b e r y ,          assumed that the products came from the
              came from outside                     mainland. Haywood contends that, at a
              St. Thomas, Virgin                    minimum, there must be some independent
              Islands, then you are                 evidence, such as a purchasing invoice or
              instructed that you                   the testimony of Santiago as to where she
              may find that the                     purchased the Heineken and Miller beer in
              defendants obtained,                  order to show interference with interstate
              delayed or affected                   commerce.
              commerce as this
              term is used in these                         We disagree. In United States v.
              instructions.                         Lake, 150 F.3d 269 (3d Cir. 1999), a
                                                    carjacking case, we held that a Virgin
App. 499. Haywood argues that the                   Islands’ police officer’s testimony was
government did not produce sufficient               sufficient to establish that the car in
evidence to show that the bar purchased             question had been transported in
goods or services from outside the Virgin           interstate or foreign commerce. In Lake,
Islands                                             the police officer, a life-long resident of
                                                    the Virgin Islands, testified that “no
       However, Detective Foy testified             motor vehicles are manufactured in the
that America’s Bar is a business                    Virgin Islands and that all motor vehicles
established in the Virgin Islands and that          have to be shipped to the islands.” Id. at
some products sold at the bar, specifically,        273. Lake argued on appeal that the
Heineken beer and Miller beer, come from            police officer’s testimony based on his
the mainland United States.      However,           long time residence was not sufficient to
Haywood still contends that Detective               establish the required commerce element
Foy’s testimony is not sufficient to show           of the federal carjacking statute, and that
that the bar purchased Heineken and                 there was no foundation for his
Miller beer that came from outside the              testimony. However, we rejected that
Virgin Islands.        The linchpin of              argument. We took judicial notice of the
Haywood’s argument is his claim that Foy            small size of the Virgin Islands, and held
did not provide a foundation for his                that a “police officer and lifelong
knowledge regarding the source of the               resident of a place of this type has a

                                               12
sufficient basis to testify as to whether             Haywood’s conviction on Count One.
any motor vehicle manufacturing                         E. Possession of a Firearm During a
facilities are located there.” Id.                    Crime of Violence.
                                                              In Count Two Haywood was
       Here, Officer Foy testified that he            convicted of possession of a firearm
was assigned to the Safe Streets Task                 during a crime of violence. The relevant
Force and that he investigates violent                statute provides:
federal crimes as a police officer in that                    [A]ny person who, during
Task Force. Officer Foy also testified that                   and in relation to any crime
he was familiar with America’s Bar. We                        o f v i o le n c e or dr u g
believe that this record is sufficient to                     trafficking crime (including
establish that Officer Foy would have                         a crime of violence or drug
known of any Heineken or Miller                               tr a f f ic king c rime that
breweries in the Virgin Islands.                              provides for an enhanced
Consequently, the evidence was sufficient                     punishment if committed by
to prove the Heineken and M iller beer sold                   the use of a deadly or
at America’s Bar came to the Virgin                           da nge r ous w e a p o n or
Islands from the mainland United States or                    device) for which the person
otherwise traveled in interstate or foreign                   may be prosecuted in a court
commerce. 7 Accordingly, we will affirm                       of the United States, uses or
                                                              carries a firearm, or who, in
                                                              furtherance of any such
   7                                                          crime, possesses a firearm,
     Haywood also argues that there is no
                                                              shall, in addition to the
evidence to support the exercise of federal
                                                              punishment provided for
jurisdiction over what is really a territorial
crime. In support of that argument, he
cites to United States v. McGuire, 178
F.3d 203 (3d Cir. 1999). There, McGuire               Haywood.      The federal jurisdictional
was convicted of arson of property used in            element in § 1951 is that interstate
an activity affecting interstate commerce.            commerce is affected. Stirone, 361 U.S. at
McGuire put a pipe bomb in his mother’s               218. Here, it is clear that interstate
car that was used in a local catering                 comm erce was affected, however
business. The government attempted to                 minimally, because the bar sold Heineken
establish the federal jurisdictional element          and Miller beer that came from outside the
by relying on a bottle of orange juice that           Virgin Islands. Moreover, the bar’s assets
was in the trunk of the car. However, we              were depleted because money was stolen
held that the bottle of orange juice was too          during the robbery.     That is far more
inconsequential to support the exercise of            consequential than one bottle of orange
federal jurisdiction. Id. at 210-212.                 juice.
       However, McGuire does not help

                                                 13
              such c ri m e of                      the night of the robbery. 8
              violence or drug                             In Trombetta v. California, 467
              trafficking crime be                  U.S. 479, 488 (1984), the Court noted that
              sentenced to a term                   “[w]hatever duty the Constitution imposes
              of imprisonment of                    on the States to preserve evidence, that
              not less than 5 years.                duty must be limited to evidence that
              ...                                   might be expected to play a significant role
                                                    in the suspect’s defense.” In order “[t]o
18 U.S.C. § 924©)(1). He argues here                meet this standard of constitutional
that because his § 1951 interference with           materiality, evidence must both possess an
commerce by robbery conviction must be              exculpatory value that was apparent before
reversed, his § 924(c) possession of a              the evidence was destroyed, and be of such
firearm during a crime of violence must             a nature that the defendant would be
also be reversed.        He reaches this            unable to obtain comparable evidence by
conclusion because he claims that the               other reasonably available means.” Id. at
interference with commerce by robbery               489.
conviction is the predicate offense for a
conviction under § 924(c). However, this                    Haywood submits that the lost or
argument is without merit because he was            destroyed clothing meets the standard for
properly convicted under § 1951.                    constitutional materiality because his case
Moreover, a conviction under § 924(c)               centered on identification. Thus, the color
does not require a conviction on the crime          and type of clothing he wore at the time he
of violence as a predicate offense. United          was arrested was relevant to both the
States v. Lake, 150 F.3d at 275. A valid §          government and the defense as proof of
924(c) conviction “requires only that the           identity.    He claims that Charles’s
defendant have committed a violent crime            identification of him is based on a white T-
for which he may be prosecuted in federal           shirt that Charles said he was wearing.
court. It does not even require that the            Ha ywood a llege s the re w as n o
crime be charged; a fortiori, it does not           overwhelming evidence that he was
require that he be convicted.” United
States v. Smith, 182 F.3d 452, 457 (6th Cir.
1999) (emphasis in original).                          8
                                                         The government claims that it neither
                                                    lost nor destroyed the clothing Haywood
    F. Lost or Destroyed Evidence.
                                                    was wearing on the night of the robbery.
       Haywood claims that the district
                                                    It notes that Detective Monoson testified
court erred by not dismissing the
                                                    on cross-examination that the clothing had
superseding indictment against him
                                                    been left in a recently condemned police
because the government either lost or
                                                    station and that he was unable to enter the
destroyed the clothing he was wearing on
                                                    building to search for the clothing because
                                                    of the condemnation.

                                               14
wearing a white T-shirt because Charles            processing following his arrest. That
was the only person who testified that he          photograph was admitted as an exhibit at
was wearing a white T-shirt. Haywood               trial, but Haywood does not bother to
claims that he was wearing different               mention it now. He also does not argue
clothing. Moreover, he notes that neither          that the admission of the photograph was
Santiago nor Rodriquez testified that he           error. We fail to understand why it
was wearing a white T-shirt. Therefore, he         makes a difference whether the actual
submits that if he had been able to                white T-shirt was introduced into
introduce the T-Shirt, it would have been          evidence or whether a photograph of
of significant value in rebutting Charles’s        Haywood wearing the white T-shirt was
testimony.9 Consequently, he argues the            introduced into evidence. Consequently,
unavailability of the clothing severely            we hold that the district court did not err
prejudiced his ability to mount a defense.         by not dismissing the superseding
                                                   indictment against him based on this due
       We do not see any merit in this             process claim.
argument. Haywood understandably
forgets that he was photographed by the               G. Problems with the Interpreter.
police wearing a white T-shirt during                      Haywood’s challenge to the
                                                   translation of testimony is equally
                                                   frivolous. At trial, both Santiago and
    9                                              Rodriquez testified with the aid of a
     Haywood suggests bad faith on the
                                                   Spanish interpreter. Haywood argues
government’s part because the police did
                                                   that his convictions must be reversed
not follow standard procedure in
                                                   because of a number of problems with
preserving the clothing he wore.
                                                   the interpreter, which he claims violated
However, he does not say what standard
                                                   his Fifth Amendment due process right
procedure the police did not follow. In
                                                   and his Sixth Amendment confrontation
United States v. Deaner, 1 F.3d 192 (3d
                                                   right. He first argues that there is no
Cir. 1993), we wrote: “A defendant who
                                                   evidence in the record that the interpreter
claims destroyed evidence might have
                                                   was certified to translate in federal court,
proved exculpatory if it could have been
                                                   as required by 28 U.S.C. § 1827, or
subjected to tests has to show the
                                                   otherwise determined to be qualified or
prosecution’s bad faith in ordering or
                                                   competent under 28 U.S.C. § 1827(d).
permitting its destruction. Without a
                                                   However, Haywood did not object to the
showing of bad faith, failure to preserve
                                                   district court’s decision to use the
evidence that might be of use to a criminal
                                                   interpreter nor did he raise any issue
defendant after testing is not a denial of
                                                   concerning the interpreter’s certification
due process.”      Id. at 200 (citations
                                                   or qualifications in the district court.
omitted). Here, there is absolutely no
                                                   Accordingly, he has waived this issue.
evidence that Haywood’s clothing was
                                                   United States v. Hsu, 155 F.3d 189, 205
purposefully lost or destroyed.

                                              15
(3d Cir. 1998) (citing Harris v. City of            vacate the conviction on Count Seven and
Philadelphia, 35 F.3d 840, 845 (3d Cir.             remand with directions to enter a judgment
1994)).                                             of acquittal.

        Haywood’s second argument is that
the interpreter improperly summarized the
testimony of Santiago and Rodriquez.
However, he fails to tell us what testimony
the interpreter summarized or why the
alleged summary was improper.
        His third argument is only slightly
less fanciful than the prior two. He claims
that the interpreter consistently translated
testimony in the third person. According
to Haywood, translation in the third person
resulted in confusion because the
translator’s use of the pronouns “she” and
“her” referred not only to Santiago and
Rodriquez, but also to other female
witnesses. In support of his argument he
cites to United States v. Gomez, 908 F.2d
809 (11th Cir. 1990). In Gomez, the
interpreter improperly equated “disco”
with “Elks Lodge,” thereby corroborating
a prior witness’s testimony that was
favorable to the government.           Here,
however, there is no claim that the
interpretation in the third person
corroborated any other testimony, and
Haywood fails to provide any concrete
examples of confusion. Therefore, Gomez
does not help. Accordingly, we do not
find any due process violation involving
the use of the interpreter.

           III. CONCLUSION
        For all of the above reasons, we
will affirm the convictions on Counts One,
Two and Four; vacate the conviction on
Count Five and remand for a new trial; and

                                               16
