                                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                             ________________

                                   No. 13-3384
                                ________________

                         UNITED STATES OF AMERICA

                                         v.

                    AMOS SINGLETON, a/k/a AZIZ MAHADI,
               a/k/a AZIZ HANKERTON, a/k/a AZIZ HANKERSON

                                           Amos Singleton,
                                                       Appellant
                                ________________

                    Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                   (D.C. Criminal Action No. 2-11-cr-00076-001)
                    District Judge: Honorable Norma L. Shapiro
                                 ________________

                     Submitted Under Third Circuit LAR 34.1(a)
                                  April 8, 2014

               Before: AMBRO, JORDAN, and ROTH, Circuit Judges

                            (Opinion filed: May 1, 2014)

                                ________________

                                    OPINION
                                ________________

AMBRO, Circuit Judge

      Amos Singleton was convicted on four counts relating to the November 2010

robbery of the Walnut Lane Apartment complex (“Walnut Lane”) in Philadelphia:
conspiracy to commit robbery that interferes with interstate commerce, robbery that

interferes with interstate commerce, use of a firearm during a crime of violence, and

convicted felon in possession of a firearm. As found by the jury, Singleton conspired

with Corey Pasley, a security guard at Walnut Lane, to gain access to Walnut Lane‟s

business office. During the course of the robbery, he pointed a gun at Barbara Jablokov,

who managed the complex, and shot her in the face. The District Court denied

Singleton‟s various post-trial motions, and he now appeals.1 We affirm.

I. Rule 29 Motion for Acquittal

       Singleton argues that the District Court erred in denying his motion for acquittal

under Federal Rule of Criminal Procedure 29. He claims the evidence is insufficient to

support his conviction on the first count of the indictment—conspiracy to commit a

robbery that interferes with interstate commerce in violation of 18 U.S.C. § 1951(a).

“We apply a particularly deferential standard of review when deciding whether a jury

verdict rests on legally sufficient evidence.” United States v. Dent, 149 F.3d 180, 187 (3d

Cir. 1998). Under this standard, “we must view the evidence in the light most favorable

to the government and will sustain the verdict if any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Id. (internal

citations and quotation marks omitted).

       “The essential elements of conspiracy are „(1) a shared “unity of purpose,” (2) an

intent to achieve a common goal, and (3) an agreement to work together toward the


1
 The District Court had jurisdiction under 28 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291.
                                              2
goal.‟” United States v. Perez, 280 F.3d 318, 342 (3d Cir. 2002) (quoting United States v.

Mastrangelo, 172 F.3d 288, 291 (3d Cir. 1999)).2 Here, Jablokov testified that Pasley

arrived at work unusually early, around 4:00 p.m., and then stepped outside to take a call

on his cell phone. She further testified that, on returning inside, he unlocked the door

(without any knock or other indication someone was outside the door) and stepped aside.

Immediately thereafter, a man with a gun entered. The second man proceeded to rob

Walnut Lane, during the course of which he shot Jablokov. The robber appeared to know

the location of Walnut Lane‟s security cameras, safe, and security alarm, information

Pasley was one of only a few people to know. At no time did Pasley, who ostensibly

ought to have been protecting Walnut Lane, attempt to stop the robber. Instead, Pasley



2
  Singleton was convicted of conspiracy under the Hobbs Act, 18 U.S.C. § 1951(a). We
have never definitively ruled on whether an overt act is required to establish such a
conspiracy, and our prior opinions give conflicting guidance. Compare United States v.
Manzo, 636 F.3d 56, 66 (3d Cir. 2011) (“The government argues that the conspiracy
count is valid because both elements of a conspiracy are met: (1) criminal intent and (2)
an overt act.”), with United States v. Inigo, 925 F.2d 641, 652 (3d Cir. 1991) (“For
conspiracy convictions, this Court requires (1) some evidence of an agreement among the
conspirators and (2) knowledge on behalf of each of the conspirators that the agreement
„had the specific unlawful purpose charged in the indictment.‟” (quoting United States v.
Terselich, 885 F.2d 1094, 1097 (3d Cir. 1989)). Among our sister Circuits, there is a split
of authority on this question. The Fifth, Sixth, and Seventh Circuit Courts appear to
require overt acts. See United States v. Stephens, 964 F.2d 424, 427 (5th Cir. 1992);
United States v. Stodola, 953 F.2d 266, 272 (7th Cir. 1992); United States v. Benson, 852
F.2d 1456, 1465 (6th Cir. 1988); see also United States v. Brantley, 777 F.2d 159, 163
(4th Cir. 1985) (stating in passing that “proof of some overt act in furtherance of the
conspiracy may be required”). However, the First, Second, and Eleventh Circuit Courts
have specifically stated that no overt act is required. See United States v. Franco-
Santiago, 681 F.3d 1, 9 n.14 (1st Cir. 2012); United States v. Pistone, 177 F.3d 957, 959-
60 (11th Cir. 1999); United States v. Clemente, 22 F.3d 477, 480 (2d Cir. 1994). Because,
in any event, there is more than sufficient evidence to show several overt acts in this case,
we leave this question to be resolved in a future opinion.
                                             3
prevented Jablokov from fleeing. Both in court and in a prior photo array, Jablokov

identified Singleton as the robber.

       After a jury verdict, “[i]t is not for us to weigh the evidence or to determine the

credibility of the witnesses.” United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir. 1996)

(quoting United States v. Schoolcraft, 879 F.2d 64, 69 (3d Cir. 1989)). Thus, even if, as

Singleton argues, the security video suggested the door may have been unlocked, the jury

could reasonably have chosen to believe Jablokov‟s testimony. In any event, the

unlocking of the door is not essential to the verdict.

       Contrary to Singleton‟s claims, there is also ample evidence to allow a rational

factfinder to conclude that Singleton called Pasley immediately before the robbery. Cell

phone records admitted at trial show that a cell phone using the number (267) 622-0709

(“the 0709 number”) called a cell phone using the number (267) 237-1912 (“the 1912

number”) at 4:01 p.m. on the day of the robbery, among other calls exchanged between

those numbers on that day. The 1912 number was registered to the mother of Greta

Freeman, Pasley‟s then-girlfriend, and Freeman testified that, at that time, Pasley was

using that phone. The phone with the 0709 number was registered to an Aziz Mahadi,

which Singleton testified was the Islamic name he had adopted and used for thirty-five

years. FBI Special Agent William Shute, a properly qualified expert in historical cell site

analysis, concluded, based on cell phone tower records, that the phone with the 0709

number was near Walnut Lane at the time of the disputed call. Given this and the other

evidence presented, a reasonable jury could have found the elements of a conspiracy and

thus had sufficient evidence to convict Singleton.

                                              4
       Alternatively, Singleton argues that there was insufficient evidence of an effect on

interstate commerce. The first two counts were, respectively, conspiracy and robbery,

both in violation of the Hobbs Act, 18 U.S.C. § 1951(a). The third count was using and

carrying a firearm during a crime of violence, specifically the robbery and conspiracy, in

violation of 18 U.S.C. § 924(c)(1). In relevant part, the Hobbs Act criminalizes activity

that “obstructs, delays, or affects commerce or the movement of any article or commodity

in commerce, by robbery or extortion or attempts or conspires so to do . . . .” 18 U.S.C.

§ 1951(a). Our case law requires only a de minimis effect on interstate commerce in

Hobbs Act cases. See United States v. Urban, 404 F.3d 754, 766 (3d Cir. 2005). At trial,

the Government introduced evidence that Walnut Lane had attempted to draw tenants

from New York and New Jersey, had at least one resident who came from New York, and

often made interstate supply purchases. Testimony was introduced that the robbery

deprived Walnut Lane of money from rent payments, prevented Jablokov from managing

the business for months due to her injuries, and made it more difficult to get future

tenants. This evidence is sufficient to allow a reasonable jury to conclude that these

crimes had the effect on interstate commerce necessary under the Hobbs Act. See United

States v. Haywood, 363 F.3d 200, 209-211 (3d Cir. 2004) (concluding that, because a

Virgin Islands bar sold beer imported from the mainland, a $70 robbery of that bar had

sufficient effect on commerce to allow for a Hobbs Act prosecution).

       Because, under our deferential standard of review, the evidence was sufficient to

support the challenged convictions, the District Court did not err in denying Singleton‟s

Rule 29 motion.

                                             5
II. Rule 33 Motion for a New Trial

       In the alternative, Singleton filed a motion for a new trial under Federal Rule of

Criminal Procedure 33. He argues that the District Court erred in denying this motion

because it erroneously failed to suppress various pieces of evidence at trial and because

statements by the prosecution allegedly prejudiced him.

A. Failure to Suppress

        “We „review the district court‟s denial of [a] motion to suppress for clear error as

to the underlying facts, but exercise plenary review as to its legality in light of the court‟s

properly found facts.‟” United States v. Kennedy, 638 F.3d 159, 163 (3d Cir. 2011)

(alteration in original) (quoting United States v. Silveus, 542 F.3d 993, 999 (3d Cir.

2008)). We will address each of the challenged pieces of evidence in turn.

       First, Singleton challenges the denial of his motion to suppress admission of a gun

that belonged to Jablokov, was stolen during the robbery, and was recovered from a

closet outside of Singleton‟s apartment. Insofar as he questions the District Court‟s

factual findings as to how the gun was obtained, those findings were not clearly

erroneous. As the District Court noted, the police first saw the gun when, while

executing a valid warrant for Singleton‟s arrest on an unrelated bank robbery charge, they

opened a padlocked hall closet outside his apartment to determine whether Singleton was

hiding inside. Although only the building‟s landlord had a key to the closet, a gap

beneath the door nonetheless allowed an object the size of the gun to be slid underneath.

The police subsequently obtained a warrant and seized, among other things, the gun, later

identified as belonging to the victim and stolen during the robbery. Whatever confusion

                                               6
may have existed as to when the gun was seized was resolved through pre-trial testimony,

and Singleton‟s assertions that the gun was planted are baseless.

       Nor did the District Court err in its legal conclusions based on those factual

findings. “The touchstone of Fourth Amendment analysis is whether a person has a

constitutionally protected reasonable expectation of privacy.” California v. Ciraolo, 476

U.S. 207, 211 (1986) (internal quotation marks and citation omitted). Because we have

previously concluded that there is no reasonable expectation of privacy in the common

area of an apartment building such as a hallway or staircase, it is unnecessary to repeat

that analysis here: Singleton had no reasonable expectation of privacy in the closet. See

United States v. Acosta, 965 F.2d 1248, 1252-53 (3d Cir. 1992). In short, despite

Singleton‟s assertions, the District Court did not err in denying the motion to suppress the

gun.

       Second, Singleton argues that his cell phone records and any fruits thereof should

have been suppressed on the ground that the records were illegally obtained. Despite his

assertions to the contrary, the investigating officers did in fact obtain a warrant for the

records. On appeal, Singleton provides no argument that this warrant was invalid. He

claims instead that procuring these records violated 18 U.S.C. § 2703, which governs the

circumstances under which communications and remote computing companies can be

required to disclose the contents of customer communications. As the Government

correctly notes, suppression is not a remedy for such a violation even if one were found.

See 18 U.S.C. § 2708 (“The remedies and sanctions described in this chapter are the only

judicial remedies and sanctions for nonconstitutional violations of this chapter.”). In the

                                              7
alternative, he suggests that the records were obtained in violation of Pennsylvania law.

Even assuming (without deciding) Pennsylvania law was violated, “evidence obtained in

accordance with federal law is admissible in federal court—even though it was obtained

by state officers in violation of state law.” United States v. Rickus, 737 F.2d 360, 363-64

(3d Cir. 1984) (citing United States v. Shaffer, 520 F.2d 1369, 1372 (3d Cir. 1975)).3

Without any basis for questioning the validity of the warrant, there is no reason to

conclude the District Court erred in not suppressing the cell phone records or evidence

obtained as a result of the cell phone records.

       Third, Singleton claims that the District Court should have suppressed Jablokov‟s

identification based on the second photo array and her in-court identification of him. “An

identification procedure that is both (1) unnecessarily suggestive and (2) creates a

substantial risk of misidentification violates due process.” United States v. Brownlee,

454 F.3d 131, 137 (3d Cir. 2006) (citing Manson v. Brathwaite, 432 U.S. 98, 107-08

(1977)). However, “[a] „suggestive and unnecessary identification procedure does not

violate due process so long as the identification possesses sufficient aspects of

reliability,‟ for reliability is the „linchpin in determining the admissibility of identification

testimony.‟” United States v. Emanuele, 51 F.3d 1123, 1128 (3d Cir. 1995) (quoting

Manson, 432 U.S. at 106, 114). For the reasons stated by the District Court, the photo

array identification was not unconstitutionally suggestive and, under the totality of the



3
 Because the records were obtained pursuant to a warrant not challenged here, it is
unnecessary to reach the question of whether Singleton had a legitimate expectation of
privacy in cell phone records held in his Islamic name.
                                               8
circumstances, both identifications were reliable. Refusing to suppress these

identifications was therefore not in error.

        Fourth, Singleton asserts that the police unconstitutionally accessed his public

welfare records from the Department of Public Welfare (DPW) to obtain his address

without a court order. Because of this purported illegality, he argues that all evidence

recovered in the subsequent search of his home must be suppressed. As the District

Court correctly concluded, there is no recognized privilege for DPW records in our

Court. Hence, the District Court did not err in not suppressing evidence obtained as a

result of DPW‟s disclosure.

B. Prosecutorial Misconduct

        Singleton argues alternatively that he is entitled to a new trial because of alleged

prosecutorial misconduct in comments about the absence of DNA evidence. Because, as

the District Court notes, Singleton did not object to the purportedly improper comments

at the time they were made, we review only for plain error. See United States v. Brennan,

326 F.3d 176, 182 (3d Cir. 2003). “In order to demonstrate prosecutorial misconduct

under a plain error standard, the review must reveal „egregious error or a manifest

miscarriage of justice.‟” United States v. Brown, 254 F.3d 454, 458 (3d Cir. 2001)

(quoting United States v. Price, 76 F.3d 526, 530 (3d Cir. 1996)). We see no such error

here.

        Singleton claims that the prosecutor improperly implied that the defendant had the

burden of producing evidence. See United States v. Balter, 91 F.3d 427, 441 (3d Cir.

1996) (“[T]he prosecution . . . may not improperly suggest that the defendant has the

                                               9
burden to produce evidence.”).4 He further contends that the prosecutor implied

knowledge of evidence not in the record, and thus the comment also constituted improper

vouching. See United States v. Young, 470 U.S. 1, 18-19 (1985).

       The prosecutor‟s statement in question was as follows:

       Forensic evidence, [defense counsel] said, “Where‟s the DNA expert? DNA
       is all the rage now, why don‟t we have DNA experts parading around in the
       Courtroom?” Well, let me make it very clear, the Defense has no obligation
       to put on any evidence to demonstrate anything. They don‟t have to throw
       a scintilla of evidence into this courtroom, nothing, nada. By the same
       token, they have subpoenas, they can bring in witnesses. I guarantee you, if
       such a witness could come in and just blow this case out of the water, you
       would have heard from him.

App. at 920a.

As the quoted language implies, defense counsel had previously referred to the fact that

the prosecution had not produced any DNA evidence. Specifically, trial counsel for

Singleton stated that the person who committed the robbery would have left DNA on the

safe keys and the gun, and went on to say:

       We haven‟t heard any DNA evidence. All we‟ve heard is I took DNA here
       and I took DNA there . . . Where is it? It‟s not here because it doesn‟t show
       that there was a positive identification with Amos Singleton. Now, that‟s
       the only, only rational explanation as to why the Government wouldn‟t
       bring in evidence that the—DNA evidence, since the OJ trial is now it. . . .
       If they had it, you would have seen it.

App. at 906a-07a.

       As the Supreme Court wrote in Young, “if the prosecutor‟s remarks were „invited,‟

and did no more than respond substantially in order to „right the scale,‟ such comments

4
  Although Singleton cites various cases addressing improper comments on a defendant‟s
failure to testify, see, e.g., Griffin v. California, 380 U.S. 609, 612-14 (1965), he has not
argued that any comments regarding his failure to testify were made here.
                                             10
would not warrant reversing a conviction.” 470 U.S. at 12-13. That is what occurred

here: defense counsel opined on the inference to be drawn from the lack of DNA

evidence and the prosecutor simply responded. This was not improper vouching, much

less “egregious error.”

       Similarly, the prosecution did not improperly imply that the defense was obligated

to provide evidence. The challenged statement was immediately prefaced by a clear

disclaimer: “the Defense has no obligation to put on any evidence to demonstrate

anything. They don‟t have to throw a scintilla of evidence into this courtroom, nothing,

nada.” App. at 920a. As to the prosecutor‟s subsequent reference to the absence of a

defense DNA witness, “[i]t is perfectly proper to comment on the failure of the defense to

call a potentially helpful witness, at least where, as here, the comment could not be

construed as a comment on the failure of the defendant to testify.” United States v.

Keller, 512 F.2d 182, 186 (3d Cir. 1975) (emphasis in original) (citations omitted). The

reference to the defense‟s subpoena power is also not, in the context of defense counsel‟s

own comments, obviously or clearly improper. See United States v. Panepinto, 430 F.2d

613, 616 (3d Cir. 1970) (“In view of this [defense] summation, the prosecutor was

certainly justified in pointing out that [the defendant] also had the power to subpoena

witnesses . . . .”). In this context, the District Court did not commit plain error, and thus

it did not err in denying Singleton‟s motion for a new trial.

III. Rule 34(a)(1) Motion to Arrest Judgment

       Finally, Singleton argues that the District Court erred in denying his motion under

Federal Rule of Criminal Procedure 34(a)(1) to arrest the judgment based on alleged

                                             11
defects in the indictment. Our review of the sufficiency of an indictment is plenary. See

United States v. Hodge, 211 F.3d 74, 76 (3d Cir. 2000).

       In support of this claim, Singleton quotes the statutes under which he was

convicted, which require that the prohibited acts be committed “in furtherance of a plan

or purpose” to violate the statute,5 18 U.S.C. § 1951(a), or “in furtherance of any such

[drug or violent] crime,” id. § 924(c)(1)(A). His brief then conclusorily asserts, without

explanation or citation, that “the Indictment was lacking in said respects.” For the

reasons stated by the District Court, the indictment was sufficient to fulfill Singleton‟s

right “to be informed of the nature and cause of the accusation[.]” U.S. Const. amend VI.

Although the “in furtherance” language was not specifically used, “[f]ailure to allege the

statutory elements will not be fatal provided that alternative language is used or that the

essential elements are charged in the indictment by necessary implication.” Hodge, 211

F.3d at 77 (quoting Gov’t of Virgin Islands v. Moolenaar, 133 F.3d 246, 249 (3d Cir.

1998)) (internal quotation marks omitted). Thus the District Court did not err in denying

Singleton‟s motion to arrest judgment.



5
  Section 1951(a) broadly subjects to punishment anyone who “in any way or degree
obstructs, delays, or affects commerce or the movement of any article or commodity in
commerce[.]” 18 U.S.C. § 1951(a). It then provides a disjunctive list of prohibited means
by which such obstruction could occur: “by robbery or extortion or attempts or conspires
so to do, or commits or threatens physical violence to any person or property in
furtherance of a plan or purpose to do anything in violation of this section[.]” Id. The
phrase “in furtherance of a plan or purpose” could be read to modify only “threatens
physical violence to any person or property,” in which case it would not be a required
element of the robbery and conspiracy charges here. However, because the indictment
clearly did allege that Singleton acted “in furtherance of a plan or purpose” to violate the
statute, it is unnecessary for us to make that determination here.
                                             12
                              *   *   *    *   *

For these reasons, we affirm the District Court.




                                      13
