                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 15-4009
                                   ________________

                            UNITED STATES OF AMERICA

                                             v.

                                BRANDON KENNEDY,
                                           Appellant

                                   ________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                           (W.D. Pa. No. 2-13-cr-00240-001)
                       District Judge: Honorable Nora B. Fischer
                                   ________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 4, 2017

              Before: CHAGARES, SCIRICA, and FISHER, Circuit Judges

                               (Filed: December 18, 2017)

                                   ________________

                                       OPINION*
                                   ________________




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
SCIRICA, Circuit Judge

                                            I.
      Brandon Kennedy appeals his conviction and sentence in connection with the

robbery of an AT&T store outside Pittsburgh, Pennsylvania. Kennedy was convicted of

interference with commerce by robbery, 18 U.S.C. § 1951(a), being a felon in possession

of a firearm, 18 U.S.C. 922(g)(1), and brandishing a firearm in furtherance of a crime of

violence, 18 U.S.C. § 924(c)(1)(A)(ii), in the Western District of Pennsylvania. He was

sentenced to 155 months in prison, including a mandatory sentence of 84 months for

brandishing a firearm in furtherance of a crime of violence under 18 U.S.C. § 924(c).

Kennedy raises constitutional challenges to his conviction and sentencing, and appeals

the denial of his motion to suppress evidence. We will affirm.

                                           II.1
                                            A.
      On November 26, 2012, a man wearing a gray sweat suit, a mask, and gloves,

entered the AT&T store in Green Tree, Pennsylvania, a suburb of Pittsburgh, and pointed

a handgun at the employees. Ordering them into the inventory room, the robber

demanded the employees fill two blue nylon bags with cash and Apple products. The

man left the store with $67.41 in cash and thirty electronic devices. The robbery was

captured on AT&T’s video surveillance system.

      Earlier that day, Brandon Kennedy had borrowed his then-partner’s rental car to

drive from Michigan to the Pittsburgh area. Because Kennedy did not have a valid

1
  The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate
jurisdiction under 28 U.S.C. § 1291.
                                             2
driver’s license, his friend, Ms. Lang drove the car and Kennedy was the passenger.2

Lang testified she drove Kennedy to the Pittsburgh area, parked at a building adjacent to

the Green Tree AT&T store, and waited in the car for Kennedy to return. After three

hours she received a phone call from Kennedy telling her to open the trunk. According to

her testimony, Kennedy then returned to the vehicle wearing a gray “sweat outfit,” AA

576, threw bags into the trunk, got in the backseat, and instructed her to drive.

       Later that evening in South Rockwood, Michigan, Officer Salamas initiated a

traffic stop of Lang and Kennedy’s rental car for traveling 81 miles per hour in a 70 mile

per hour zone. Officer Salamas approached the car and first spoke with Ms. Lang. He

testified that he noticed signs of marijuana use—including glassy, bloodshot eyes and the

smell of burnt marijuana. Ms. Lang admitted to having smoked marijuana earlier in the

day. Officer Salamas removed her from the car and administered a field sobriety test. Ms.

Lang failed the sobriety test and was arrested and placed in the back of Officer Salamas’s

police car. During this process a border patrol agent arrived to assist Officer Salamas

with the traffic stop but did not have any direct contact with Kennedy or Ms. Lang.

       Officer Salamas then returned to the vehicle and ran a warrant check on Kennedy,

finding three outstanding warrants. He arrested Kennedy, placed him in the border patrol

officer’s car, and proceeded to search the vehicle for evidence of controlled substances.

He found none. A second border patrol agent arrived with a “drug dog.” The dog made a

couple of passes around the vehicle, but no contraband was found.

2
  Kennedy’s then-partner, Ms. Taylor, rented the car for herself but had given Kennedy
permission to use her Hertz rental car as long as he had a licensed driver to operate the
car. And although he was not referenced officially on the rental agreement, Ms. Taylor
testified Kennedy reimbursed her for some of the costs associated with the rental.
                                             3
       Officer Salamas then called for a tow truck to remove the car from the interstate.

In preparation for the car’s impoundment, he conducted an inventory search of the

vehicle.3 He found two blue nylon bags containing 12 Apple iPads, 14 Apple iPhones, 1

Samsung phone, and a piggy bank in the trunk of the car. When asked about the items,

Kennedy stated he had purchased them from a friend for $1200. According to Officer

Salamas, the entirety of Lang and Kennedy’s arrests was captured by a dashboard camera

installed in his police car, which activates whenever the vehicle’s emergency lights are in

use.

       Upon completion of the inventory, the car was towed back to the Hertz agency in

Dearborn, Michigan. Two days after the car was returned to Hertz, an employee noticed

the seat was improperly aligned, lifted the seat and discovered a firearm. He immediately

called the police. Officer Salamas was sent to recover the firearm. The Hertz employee

testified that while they were waiting for the police to arrive, Ms. Taylor and a man he

later identified as Kennedy based on a photograph provided to him by the Bureau of

Alcohol, Tobacco, and Firearms, came into the store and were “adamant” about wanting

to remove items from the vehicle. They were told that a police investigation was in

process and denied access to the vehicle.

       When Officer Salamas arrived, he photographed the firearm in the vehicle, and

wore gloves while handling it, but did not request further tests (fingerprint, DNA). The

weapon was initially retained by the South Rockwood police department and logged in as



3
 Officer Salamas testified that the inventory was conducted in accordance with
department policy at the time.
                                             4
evidence, but upon discovery it had been stolen, it was turned over to the police in the

jurisdiction where the theft had occurred.

       Three months later, the items found during the traffic stop were identified as the

items stolen in the Green Tree robbery. A grand jury returned a three-count indictment

charging Kennedy with interference with commerce by robbery (“Hobbs Act robbery”),

being a felon in possession of a firearm, and brandishing a firearm in furtherance of a

crime of violence.

                                             B.

       Prior to trial, Kennedy filed several motions relevant to this appeal. Kennedy filed

a motion to suppress the evidence seized in the traffic stop. He argued that although not

the renter of the vehicle, he had a reasonable expectation of privacy, and therefore the

police search of the rental car violated his Fourth Amendment rights. After a hearing, the

District Court denied the motion to suppress.

       Kennedy also made numerous attempts, including making an oral motion on the

record, to obtain video footage from the night of his arrest. All South Rockwood police

cars are equipped with dashboard cameras that activate and record whenever the vehicle’s

emergency lights are in use. When standard procedure is followed, video captured by the

dashboard camera is saved to a hard drive in the car, which the officer then takes to his

supervisor to download and save onto a computer at the police station. Accordingly, the

South Rockwood police department should have had dashcam footage of the traffic stop

and Kennedy’s subsequent arrest. But in response to Kennedy’s motion, the government

filed a written response stating that no such footage existed.

                                             5
       The case proceeded to trial where the government called several witnesses

including Officer Salamas, his supervisor, and Ms. Lang. Officer Salamas testified about

details related to the traffic stop and Kennedy’s subsequent arrest, including the fact that

Kennedy was wearing a gray sweat suit at the time of arrest. He also testified the

dashcam in his vehicle recorded these events and that he turned the cartridge containing

the video in to his supervisor according to department protocol. Officer Salamas’s

supervisor testified that he personally transferred the footage from Officer Salamas’s

dashcam system to the police station’s computer, and that months later, upon realizing

the data had been lost, he and the police chief attempted to recover the data by consulting

the manual and technical support. Ms. Lang testified about the events on the day of the

robbery, including claiming Kennedy committed the robbery of the AT&T store.

       The defense contested Officer Salamas’s and Ms. Lang’s accounts. The defense

also challenged the nature government’s investigation process—particularly the

government’s failure to fingerprint and DNA-test the firearm allegedly used in the

robbery. See Appellant Br. at 46. During the trial and in closing argument, the

government countered these claims by suggesting the defense could have itself conducted

such testing. Kennedy did not object to these remarks when they were made.

       A jury convicted Kennedy of all three charges. The District Court imposed a

sentence of 155 months in prison, which included a mandatory sentence of 84 months for

brandishing a firearm in furtherance of a crime of violence under 18 U.S.C. § 924(c).




                                              6
                                               III.

          Kennedy raises four issues on appeal: (1) whether the loss or destruction of the

dashcam video of his arrest violated his due process rights; (2) whether statements the

prosecution made at trial unconstitutionally shifted the burden of proof from the

government to the defense; (3) whether his conviction and sentence for brandishing a

firearm in furtherance of a crime of violence under 18 U.S.C. § 924(c) are still valid in

light of the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551

(2015); and (4) whether the search of the rental car violated his Fourth Amendment

rights.

A. Dashcam and Due Process

          To establish a due process violation on the basis of a failure to preserve potentially

exculpatory evidence, a defendant must show: (1) the potentially exculpatory nature of

the evidence was apparent at the time of destruction or loss, California v. Trombetta, 467

U.S. 479, 489 (1984); (2) there is a lack of “comparable evidence by other reasonably

available means,” id.; and, (3) the government acted in “bad faith,” Arizona v.

Youngblood, 488 U.S. 51, 58 (1988).

          Kennedy argues the loss of the dashcam footage of the traffic stop violated his due

process rights. Kennedy maintains “the video contained potentially exculpatory

evidence” and would have resolved “a number of key factual disputes about the traffic

stop and arrest.” Appellant Br. at 32. In particular, Kennedy contends that he was

identified as the robber of the AT&T store largely based on Officer Salamas’s and Ms.

Lang’s testimony about his clothing—that he was wearing a gray sweat suit—and that the

                                                7
lost dashcam footage would show that Kennedy was not wearing a sweat suit at the time

of arrest.

       We do not find Kennedy’s due process rights were violated. Even if Kennedy were

able to satisfy the first two prongs,4 he has not shown bad faith on the part of the police

led to the loss of the video. “[U]nless a criminal defendant can show bad faith on the part

of the police, failure to preserve potentially useful evidence does not constitute a denial

of due process of law.” See Youngblood, 488 U.S. at 58; see also United States v. Deaner,

1 F.3d 192, 200 (3d Cir. 1993). In requiring a showing of bad faith, the Supreme Court

sought to limit due process violations “to that class of cases where the interests of justice

most clearly require it, i.e., those cases in which the police themselves by their conduct

indicate that the evidence could form a basis for exonerating the defendant.” Youngblood,

488 U.S. at 58.

       Although we think it is important that every effort be made to retain dashcam

footage, there is no evidence of bad faith in this case. Officer Salamas and his supervisor

testified that they followed procedure in transferring and storing the video, and that upon

realizing its loss, consulted the manual and sought technical support but were ultimately

informed the footage was irretrievable.

       Kennedy does not even contend the officers intentionally destroyed the video, but

only that the loss of the footage indicates a failure to follow standard procedure, and that

the attempts to recover the data were insufficient. See Appellant Br. at 40. Even if true,

4
  The exculpatory nature of the evidence in this case is also doubtful. Even if the video
were to show, as Kennedy contends, he was not wearing a gray sweat suit at the time of
arrest, that would not conclusively show that he was not wearing it hours earlier when the
robbery actually occurred.
                                             8
such errors are not equivalent to an action taken to gain a tactical advantage over the

defendant. See Youngblood, 488 U.S. at 57; Deaner, 1 F.3d at 200 (“While a showing

that the government did not follow standard procedure could provide some evidence of

bad faith, we have not held that an improper procedure in and of itself implies bad

faith.”). For these reasons, Kennedy has not established that the loss of the dashcam

video violated his due process rights.

B. Burden Shifting

       Kennedy contends that statements made by the prosecution during trial

impermissibly shifted the burden of proof from the government to the defense. Because

Kennedy did not object to these statements at trial, we review for plain error. See United

States v. Olano, 507 U.S. 725, 731 (2007). “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)).

       Kennedy contends that twice during trial, once on direct examination and once

during closing statements, the government referenced the fact that the defense did not

request fingerprinting or DNA-testing on the firearm recovered from the rental car,

“thereby implying that the burden was on Mr. Kennedy to gather and produce evidence.”

Appellant Br. at 44. Kennedy further contends “the government’s attempts to qualify the

statement by saying the burden was not on the defendant does not negate the error.” Id. at

47. The government argues it was entitled to respond to the defense’s “immoderate focus

on the absence of DNA and fingerprinting.” Appellee Br. at 38.

                                             9
       We find the error in this case was not “plain.” The plain error exception is to be

“used sparingly, solely in those circumstances in which a miscarriage of justice would

otherwise result.” United States v. Young, 470 U.S. 1, 15 (1985) (quoting United States v.

Frady, 456 U.S. 152, 163 n.14 (1982)). Such circumstances are not present here. The

government presented evidence linking Kennedy to the firearm including the recovery of

the stolen devices from the same rental car in which the gun was found, and the Hertz

employee’s testimony that Kennedy was adamant about gaining access to the vehicle

before the police arrived, which the jury was free to weigh against the lack of DNA and

fingerprint evidence. To the extent the prosecutor’s remarks were prejudicial, they were

mitigated by the prosecutor’s clear statement that the burden of production was not on the

defendant. Furthermore, given the evidence against Kennedy, it is unlikely that these

comments, standing alone would have “affected the outcome of the district court

proceedings.” Olano, 507 U.S. at 734. Accordingly, we do not find egregious

circumstances amounting to plain error and this challenge fails.

C. Crime of Violence

       Kennedy was convicted under 18 U.S.C. § 924(c) for brandishing a firearm during

and in relation to a “crime of violence.” 18 U.S.C. § 924(c)(3) includes two definitions of

“crime of violence,” known as the “elements clause” and the “residual clause.” The

“elements clause” encompasses crimes that “ha[ve] as an element the use, attempted use,

or threatened use of physical force against the person or property of another.” 18 U.S.C.

§ 924(c)(3)(A). The “residual clause” encompasses crimes that “by [their] nature,

involve[] a substantial risk that physical force against the person or property of another

                                             10
may be used in the course of committing the offense.” 18 U.S.C. § 924(c)(3)(B).

Kennedy argues: (1) Hobbs Act robbery is not a crime of violence under the elements

clause, and (2) that the residual clause is void for vagueness in light of the Supreme

Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015). We hold a

conviction for Hobbs Act robbery when concurrent with a conviction for brandishing a

firearm is a crime of violence under the elements clause, and therefore do not need to

reach Kennedy’s residual clause argument.

       In his opening brief, Kennedy assumed the court’s analysis of the predicate

offenses under the “elements clause” of § 924(c) would mirror the “categorical approach”

taken under the Armed Career Criminal Act, allowing the court to look only at the

elements of the crime, not the facts of the specific case. But after his brief was filed, we

held in United States v. Robinson, 844 F.3d 137, 142 (3d Cir. 2016), cert. denied,

___ S. Ct. ___, 2017 WL 3008904 (Oct. 2, 2017), that the rationales for applying the

categorical approach were not present when the predicate offense was tried

contemporaneously before the same court. See id. at 141-42. We adopted instead an

alternative approach for determining which predicate offenses qualify as crimes of

violence under the “elements clause.” See id.

       Our decision in Robinson is on point. Robinson involved a defendant concurrently

tried and convicted of Hobbs Act robbery and brandishing a firearm in furtherance of a

crime of violence under § 924(c). See id. at 140. And we concluded “when . . . the two

offenses, robbery and brandishing a gun, have been tried together and the jury has

reached a guilty verdict on both offenses, the Hobbs Act robbery qualifies as a crime of

                                             11
violence under the ‘elements clause’ of 18 U.S.C. § 924(c)(3)(A).” Id. at 139. Because

the same jury that convicted Robinson under § 924(c) found beyond a reasonable doubt

that he had brandished a firearm in the act of committing that offense, we reasoned that

the court could consider the contemporaneous conviction as “shed[ding] light on the

means by which the predicate offense was committed.” Id. at 143. “The defendant suffers

no prejudice because the court is not finding any new facts which are not of record in the

case before it.” Id. “The question, therefore, is not ‘is Hobbs Act robbery a crime of

violence?’ but rather ‘is Hobbs Act robbery committed while brandishing a firearm a

crime of violence?’” Id. at 144. And we concluded, “[t]he answer to this question must be

yes.” Id.

       This case is nearly identical to Robinson. The question is once again, “is Hobbs

Act robbery committed while brandishing a firearm a crime of violence?” The answer

remains yes.

       Because we conclude Kennedy’s Hobbs Act robbery constitutes a crime of

violence as defined in the elements clause of § 924(c), we decline to reach Kennedy’s

challenge to the constitutionality of the residual clause in light of Johnson.

D. Fourth Amendment challenge

       Finally, Kennedy appeals the denial of his motion to suppress the physical

evidence seized during the traffic stop. The District Court denied the motion on the basis

that a rental car passenger has no reasonable expectation of privacy and therefore




                                             12
Kennedy lacked standing to bring the Fourth Amendment claim. 5 Although there is a

circuit split on whether, in exceptional circumstances, an unauthorized driver can have a

reasonable expectation of privacy,6 no court of appeals has recognized the expectation of

privacy for a passenger in a rental car.

       Kennedy concedes “the law does not currently recognize a rental car passenger’s

expectation of privacy,” but urges us to take this opportunity to recognize the standing of

passengers in rental cars for Fourth Amendment claims. He offers no legal argument for

this proposed shift in law. We decline to do so.

                                            IV.

       For the foregoing reasons, we will affirm the judgment of conviction and sentence.




5
  The District Court set forth two other bases for denying Kennedy’s suppression motion
but he does not challenge these on appeal.
6
  In United States v. Kennedy, 638 F.3d 159, 167-68 (3d Cir. 2011), we “join[ed] the
majority of circuits in concluding that the lack of cognizable property interest in the
rental vehicle and the accompanying right to exclude makes it generally unreasonable for
an unauthorized driver to expect privacy in the vehicle.” Id. at 167. However, we also
acknowledged that “extraordinary circumstances . . . might overcome the general rule
that we adopt here.” Id. at 168.

                                            13
