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


4-17-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2060




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 05-2060


                           UNITED STATES OF AMERICA

                                            v.

                                   LARNELL LOWE,
                                     a/k/a L-Lowe,

                                      Larnell Lowe,
                                         Appellant


                      Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                          (D.C. Criminal No. 04-cr-00131-3)
                        District Judge: Honorable Yvette Kane


                       Submitted Under Third Circuit LAR 34.1(a)
                                   March 26, 2007

             Before: RENDELL, BARRY and CHAGARES, Circuit Judges

                                  (Filed April 17, 2007)


                               OPINION OF THE COURT


RENDELL, Circuit Judge.

       Larnell Lowe was convicted by a jury of two counts of carjacking, in violation of

18 U.S.C. § 2119, two counts of using a firearm in furtherance of a crime of violence, in
violation of 18 U.S.C. § 924(c), and one count of conspiracy to use a firearm in

furtherance of a crime of violence, in violation of 18 U.S.C. § 924(o). The District Court

sentenced him to 504 months imprisonment, 3 years supervised release, a $2,500 fine, a

special assessment of $100 for each count, and restitution to the victims. Lowe appeals

his convictions on the ground that they were supported by insufficient evidence. We

have jurisdiction over Lowe’s appeal pursuant to 28 U.S.C. § 1291 and we will affirm.

                                              I.

       On January 1, 2004, Lowe and several other men attacked Grady Walker

(“Grady”) outside the Calabash restaurant in Harrisburg, Pennsylvania, stealing his cell

phone, money and car keys. Grady, as well as Lowe’s co-defendants Phillip Walker

(“Phillip”) and Brian Pendelton, who testified after entering into plea agreements, stated

that Lowe participated in the attack. According to Phillip, Lowe and the other men

spotted Grady and decided to rob him because he was from the “uptown” section of

Harrisburg. Grady and Phillip both testified that Lowe put a gun to Grady’s face at one

point during the attack. Phillip testified that the attackers took Grady into an alley, beat

him with a shotgun and asked for his car keys. One of the attackers took the keys and

drove away in Grady’s car, which was parked across the street from the restaurant. Lowe

fled after the attack.

       Some of the testimony describing the attack on Grady was inconsistent. Pendelton

testified that he was not present during the attack and only heard about it later, while both

Grady and Phillip testified that Pendelton participated in the attack. Grady and Phillip

                                              2
also disagreed as to who, besides Lowe, participated in the attack and as to who, besides

Lowe, put a gun to Grady’s face. They also disagreed about who drove away in Grady’s

car.

       Approximately one hour after the carjacking of Grady Walker, a group of men

including Lowe robbed Bryant Mathes and his fiancée, Angela Terry, in an area that was

about a fifteen-minute walk from the Calabash. According to Pendelton, as the group

approached Mathes’ car, Lowe said “let’s get them.” As Mathes and Terry were getting

out of the car, the group of men approached them. One put a gun to Mathes’ head and

several of them took Mathes’ watch and ring. They asked for Mathes’ car keys and one

or more of the men drove away in his car. While several men were attacking Mathes,

several others were on the other side of the car, pointing a gun at Terry and taking her

purse. Neither Mathes nor Terry could identify the attackers.

       There was some inconsistency in the testimony about the carjacking of Mathes and

Terry. Phillip and Pendelton disagreed as to who participated in the carjacking, but both

said that Lowe did. Terry said that two men drove away in the car, while Mathes said that

three men drove away in the car, and Phillip and Pendelton both testified that Pendelton

alone drove away in the car. Furthermore, before Lowe’s trial, Phillip had named other

people as participants in the carjacking, but at trial, Phillip conceded that these

individuals were not involved. Phillip testified that he named these additional people

because he was threatened.

       At trial, the parties also stipulated that:

                                                3
       [I]f the Government called witnesses to testify as to where the two
       automobiles at issue in this case were manufactured, they would testify that
       [the car] that was taken from Grady Walker on January 1st, 2004, was
       manufactured in . . . Mexico, and therefore traveled in interstate or foreign
       commerce, and that [the car] taken from Bryant Mathes on January 1st,
       2004, was manufactured in Marysville, Ohio, and therefore traveled in
       interstate or foreign commerce.

       A jury convicted Lowe of the carjackings of Grady Walker and Bryant Mathes,

two counts of using or carrying a firearm during and in relation to a crime of violence,

and one count of conspiracy to possess firearms in furtherance of a crime of violence.

Lowe moved for a judgment of acquittal at the close of the government’s case and after

the verdict, on the ground that there was insufficient evidence to support the convictions.

Lowe did not raise any objection to the sufficiency of the evidence to prove that the stolen

vehicles had been transported in interstate commerce. The District Court denied these

motions, finding that the government presented sufficient evidence to support Lowe’s

convictions. This appeal followed.

                                            II.

       Our review of the sufficiency of the evidence to support a conviction is plenary.

United States v. Mussare, 405 F.3d 161, 166 (3d Cir. 2005). “We will reverse a jury

verdict for insufficiency of the evidence ‘only when the record contains no evidence,

regardless of how it is weighted, from which the jury could find guilt beyond a reasonable

doubt.’” Id. (internal citations omitted). “We must view the evidence in the light most

favorable to the government and must sustain a jury’s verdict if ‘a reasonable jury

believing the government’s evidence could find beyond a reasonable doubt that the

                                             4
government proved all the elements of the offenses.’” United States v. Rosario, 118 F.3d

160, 163 (3d Cir. 1997) (internal citations omitted).

                                             III.

       Lowe first argues that the evidence that the stolen cars were manufactured outside

of Pennsylvania is insufficient to prove that they were transported, shipped or received in

interstate commerce. We will engage in plain error review, and we find no such error.

See United States v. Peppers, 302 F.3d 120, 125 (3d Cir. 2002) (stating that we review for

plain error where defendant fails to “preserve an objection to the sufficiency of the

evidence”). Lowe stipulated at trial that a government witness, if called, would have

testified that the stolen cars were manufactured outside of Pennsylvania and that they

“therefore traveled in interstate or foreign commerce.” This evidence was sufficient to

allow a reasonable jury to find beyond a reasonable doubt that the stolen cars were

transported in interstate commerce. See United States v. Lake, 150 F.3d 269, 273 (3d Cir.

1998) (holding that police officer’s testimony that “no motor vehicles are manufactured in

the Virgin Islands” was sufficient to establish that cars stolen in Virgin Islands traveled in

interstate commerce).



                                             IV.

       Lowe next claims that the evidence was not sufficient to support his conviction for

the carjacking of Grady Walker. In order to prove a violation of 18 U.S.C. § 2119, “the

prosecution must prove that the defendant (1) ‘with intent to cause death or serious bodily

                                              5
harm’ (2) took a motor vehicle (3) that had been ‘transported, shipped, or received in

interstate or foreign commerce’ (4) ‘from the person or presence of another’ (5) ‘by force

and violence or by intimidation.’” Lake, 150 F.3d at 272.

       Lowe argues that the government did not establish that he participated in taking

the car, or that he was vicariously liable as a co-conspirator under Pinkerton v. United

States, 328 U.S. 640 (1946). To prove Pinkerton liability, the government must establish:

       1. That a conspiracy existed in that there was an agreement between
       individuals to align themselves with others in the criminal venture;
       2. That having so aligned themselves together, one or more of the others of
       them acted to commit the substantive offense; and
       3. That the substantive offense was committed in furtherance of the criminal
       venture in which the defendant had aligned himself with others.

United States v. Lopez, 271 F.3d 472, 480 (3d Cir. 2001).

       Lowe argues that there was no evidence of a specific agreement to take the car.

However, for Pinkerton liability, the government was not required to prove the existence

of an agreement to take the car. Instead, the government had the burden to prove that

Lowe participated in a conspiracy and that one or more of the conspirators committed the

carjacking in furtherance of the conspiracy. As the District Court noted in denying

Lowe’s motion for acquittal, the agreement necessary for a conspiracy “can be inferred

from evidence of related facts and circumstances from which it appears as a reasonable

and logical inference, that the activities of the participants . . . could not have been carried

on except as the result of a preconceived scheme or common understanding.” United

States v. Pressler, 256 F.3d 144, 149 (3d Cir. 2001) (internal citations omitted). Further,


                                               6
“[t]he government need not prove that each defendant knew all of the conspiracy’s

details, goals, or other participants.” United States v. Gibbs, 190 F.3d 188, 197 (3d Cir.

1999). In this case, there was testimony from one of the participants in the robbery that

Lowe and others “decided to rob” Grady Walker and then proceeded to approach him

outside the Calabash restaurant, assault him and take his car keys and other possessions.

Thus, there was sufficient evidence for a jury to conclude that Lowe conspired to rob

Grady Walker and that the carjacking was committed in furtherance of the robbery

conspiracy.

       Lowe also argues that the evidence was insufficient to prove that the assault was

committed with the intent of taking the car. In United States v. Applewhaite, we found

that the evidence was insufficient to prove that the defendants had the requisite intent

because they took the vehicle as a mere “afterthought” to the assault, in order to transport

the victim’s body away from the site of the crime. 195 F.3d 679, 685 (3d Cir. 1999).

Here, however, both Grady Walker and Philip Walker testified that the attackers asked for

Grady’s car keys while they were assaulting him. This is sufficient evidence that the

assault was committed with the intent of taking Grady’s car.

       Finally, Lowe argues that the evidence was insufficient to prove that the carjacking

participants intended to cause death or serious bodily injury to Grady Walker if he did not

surrender his car. In Lopez, we held that where “the defendants insisted [the victim] give

them her keys in the course of a robbery and assault,” there was sufficient evidence of an

intent to cause death or serious harm. 271 F.3d at 486. In this case, there was evidence

                                             7
that the attackers repeatedly asked Grady Walker for his keys while pointing a gun at him.

This evidence was sufficient to prove that the attackers intended to cause death or serious

bodily injury if Grady Walker did not surrender his keys.

                                            V.

       Lowe’s last argument is that there was insufficient evidence to sustain his

conviction for the carjacking of Bryant Mathes and Angela Terry because “the

government’s case consisted primarily of the testimony of two co-defendants whose

testimony was inconsistent with each other, prior statements and accounts of the victims.”

As the District Court noted, “[Lowe] appears to be arguing not so much that no evidence

exists to support his conviction for the Mathes/Terry carjacking, but that the evidence at

trial was contradictory and untrustworthy.” It is not our role “to weigh the evidence or to

determine the credibility of the witnesses.” United States v. Voigt, 89 F.3d 1050, 1080

(3d Cir. 1996) (internal citations omitted). We may not overturn a conviction unless “the

record contains no evidence, regardless of how it is weighted, from which the jury could

find guilt beyond a reasonable doubt.” United States v. Anderson, 108 F.3d 478, 481 (3d

Cir. 1997) (internal citation omitted). Viewing the evidence in the light most favorable to

the government, id., we conclude that there was sufficient evidence presented at trial to

permit a rational trier of fact to conclude beyond a reasonable doubt that Lowe was guilty

of the Mathes carjacking.

                                            VI.

       Accordingly, for the reasons set forth above, we will affirm Lowe’s convictions.

                                             8
