                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-19-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-5105




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Recommended Citation
"USA v. Benson" (2008). 2008 Decisions. Paper 1212.
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                                                             NOT PRECEDENTIAL


                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                                __________

                                   No. 06-5105
                                   __________


                         UNITED STATES OF AMERICA

                                         v.

                               STEPHEN BENSON,

                                                    Appellant
                                   __________

                  On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                          (D.C. Criminal No.04-cr-00493)
                     District Judge: Honorable Anita B. Brody
                                    __________

                     Submitted Under Third Circuit LAR 34.1(a)
                                on March 25, 2008

           Before: McKEE, RENDELL, and TASHIMA,* Circuit Judges.

                              (Filed May 19, 2008 )


__________________

   * Honorable A. Wallace Tashima, Senior Judge of the United States Court of
     Appeals for the Ninth Circuit, sitting by designation.



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                                        __________

                                 OPINION OF THE COURT
                                       __________




RENDELL, Circuit Judge.

       This appeal arises out of the conviction of Steven Benson for a series of offenses

based upon a botched robbery at Ugo’s Market in Philadelphia. The witnesses to the

crime included: Ann Giacomucci, the manager of the store; Michele (“Mike”) Gesualdo,

an elderly patron who frequented the store; and Officer Anthony Jones, the officer who

arrived during the robbery. Officer Christopher Egan arrived soon thereafter and found

the gun left on a shelf in the store.

       When Officer Jones arrived, the robber was still in the store and tried to run out

when Officer Jones ordered him to stop. The robber then ran back into the store and

disappeared for a few seconds before reappearing and trying to walk away. At the

preliminary hearing, both Officer Jones and Ms. Giacomucci were able to identify Benson

but Mr. Gesualdo was not.

       Benson was convicted by a jury of interference with interstate commerce by

robbery, possession of a firearm in furtherance of a crime of violence, and possession of a

firearm by a convicted felon. Benson filed a motion for new trial, setting forth

essentially the same three arguments that he presents on appeal. These are: (1) that the

District Court abused its discretion by refusing to appoint new counsel for Benson on the

                                             2
day of trial; (2) that trial counsel was ineffective in that he failed to subpoena

Mr. Gesualdo to testify; and (3) that the District Court erred in giving a supplemental jury

instruction regarding the interstate commerce element of the federal robbery offense. We

find all three arguments unavailing and will affirm.

       The District Court considered each of these arguments in turn in connection with

Benson’s motion for new trial. The District Court not only held a hearing but wrote a

30-page comprehensive opinion addressing each aspect of each argument. We need not

restate here the District Court’s thoughtful, persuasive analysis, but will note only the key

elements that compel us to affirm as to each of appellant’s claims.

       With respect to appellant’s first argument, namely, Benson’s request, on the day of

trial, for appointment of new counsel, we note that the District Court had already

appointed new counsel once before, based upon the same contention made by him on the

day of trial, i.e., a “breakdown in communication.” When Benson made this argument

with respect to trial counsel on the day of trial, the District Court inquired as to exactly

the nature of the communication breakdown. Counsel indicated that he and Benson had

discussed the case and the documents, and the judge then offered more time for them to

prepare for trial that afternoon. Not only did Benson not renew his objection, but he

indicated twice on the record that this proposal was “fair enough.” Accordingly, we agree

with the District Court that denial of substitution of counsel and of continuance of trial




                                               3
under these circumstances was not merely within the Court’s discretion, but well within

its discretion.1

       With respect to appellant’s second argument, that counsel’s failure to subpoena

Mr. Gesualdo constituted ineffective assistance of counsel, the District Court analyzed

this argument in a thorough, thoughtful way. The District Court concluded that it

mattered little whether or not it was reasonable for counsel to have believed that the

government would subpoena Mr. Gesualdo, and whether or not it was reasonable that

counsel was somewhat confused as to the various Italian witnesses, because there clearly

was no prejudice, in that counsel could not have secured Mr. Gesualdo’s attendance at

trial. The District Court had ordered both counsel, before the trial, to try to subpoena

Mr. Gesualdo, but defense counsel had learned that Mr. Gesualdo had suffered a heart

attack and was in the hospital. (He died about a month after trial.) Accordingly, any

ineffectiveness, if indeed it was ineffectiveness, did not result in prejudice. Further,

Mr. Gesualdo’s testimony from the preliminary hearing was read into the record at trial

and may, in fact, have been stronger testimony than if he had been present at trial and

appeared frail. Benson’s ineffectiveness claim must therefore fail.




  1
   We need not repeat all of the case law supporting the District Judge’s ruling, as she
included ample authority in her opinion.

                                              4
         The third argument raised by Benson, that the supplemental jury instruction

regarding the requisite effect on interstate commerce was improper, was similarly rejected

by the District Court. The District Court had given an initial instruction that had been

agreed upon by both sides. Thereafter the jury inquired as to a possible inconsistency

between certain words in the instruction, and the government proposed that the District

Court give a supplemental instruction that we referred to approvingly in United States v.

Haywood, 363 F.3d 200, 210 (3d Cir. 2004). Over defense counsel’s objection, the

District Court gave that supplemental instruction, which expanded upon the concept of

the effect on interstate commerce by noting that the effect could be “slight, subtle or even

potential.” While it is arguable that this instruction set forth a broader concept of “effect”

than had the previous instruction, this statement of the law was correct. While Benson

contends that this instruction introduced a new theory of liability, we disagree. Rather,

the instruction constituted a conceptual variation, ever so slight, from the instruction

previously given, and was clarifying in its content. Because it represented a correct

instruction under the law, we would have difficulty in overturning the District Court’s

resort to this instruction.

         Accordingly, we will AFFIRM the Judgment and Conviction Order of the District

Court.




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