                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-9-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4557




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 07-4557


                           UNITED STATES OF AMERICA

                                            v.

                                GREGORY ROBINSON,
                                              Appellant


                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                          (D.C. Criminal No. 06-cr-00604-1)
                      D.C. Judge: Honorable Michael M. Baylson


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 26, 2009

         Before: SCIRICA, Chief Judge, AMBRO and SMITH, Circuit Judges.

                                  (Filed: April 9, 2009)


                               OPINION OF THE COURT


SCIRICA, Chief Judge.

       Gregory Robinson was convicted of Hobbs Act robbery, 18 U.S.C. § 1951, of the

Wishing Well Market in Philadelphia; of carrying a firearm during and in relation to a

crime of violence, § 924(c)(1); and of possession of a firearm by a convicted felon,
§§ 922(g)(1), 924(e). He was sentenced to a mandatory life term in prison, an additional

eighty-four month prison term, restitution, and a special assessment. Robinson challenges

the convictions and his sentence.

       At trial, the government presented evidence, including eyewitness testimony, that

Robinson, armed with a revolver, had robbed the Wishing Well Market, fled, and was

apprehended nearby after shooting at a Philadelphia police officer. Two Wishing Well

employees—Arthur Berg and former owner Michael Wishing—both eyewitnesses,

recounted the robbery in their trial testimony. Berg was working in between two

cashier’s booths at the front of the store when he saw Robinson in the store, about fifteen

feet away from him, armed with a silver revolver. Robinson walked toward an office

located inside the store, also near the front. As Robinson was about to enter the office, he

turned to face Berg, who got an unobstructed look at him, including a good look at his

face. He spoke directly to Berg, commanding him to stay where he was. Robinson then

entered the office, taking Michael Wishing, who had been working at a desk there, by

surprise. Robinson pushed Wishing, pointed a gun into his neck, and demanded he take

money from the store safe—approximately $700—and place it into a red bag. “[G]ive me

the money or I’ll blow your f’ing head off,” Robinson commanded, and while Wishing

was filling the bag, Robinson ordered Berg to stay put: “[D]on’t move or I’ll shoot this

M.F.” (J.A. 49, 69.) After Wishing had placed the money in the bag, Robinson walked

out of the store, placing the gun in his pants.



                                                  2
       In addition to identifying Robinson as the robber in court, Berg identified the red

bag and some clothing—a jacket and a hat—as items carried and worn by Robinson in the

store. And he identified the gun used in the robbery. The clothing, bag, and gun Berg

identified at trial were all items recovered from Robinson when he was apprehended.

Michael Wishing testified he did not see the robber clearly because he was focused

intently on the gun pointed directly at him—so intently that he could see bullets in the

gun’s chambers. Wishing identified both the gun and the red bag as those used in the

robbery. A third employee, Tyrone Fortune, testified that he ran away down a store aisle

to call 911 as soon as he saw the tip of a gun. He saw the robber only momentarily, and

only from behind.

       Immediately after the robbery, Berg ran outside and flagged down Lieutenant

George Kappe of the Philadelphia Police Department. Berg gave Kappe a description of

the robber, noted the robber was armed, and rode in Kappe’s police car looking for the

man. Soon, they found Robinson walking on Mount Vernon Street, not far from the

Wishing Well Market. Berg identified Robinson as the robber, and Kappe exited his

police car with his gun drawn, identifying himself as a police officer.

       Kappe and Berg’s testimony detailed the gunfight that ensued. Robinson turned,

put down the red bag, removed the gun from his pants, and—holding the gun underneath

the jacket he was carrying—fired two shots at Kappe. Kappe returned fire, and Robinson

ran across the street, taking position behind a parked car. Kappe followed, but he slipped

and fell as he approached the car. Robinson attacked. “I got you now, mother fucker,”

                                             3
Robinson said just before firing again at Kappe. (J.A. 137.) Kappe fired back, deterring

Robinson’s attack, and Robinson fled down the street. Kappe called for assistance, then

pursued on foot.

       During the pursuit, Robinson pointed his gun back at Kappe a third time,

prompting Kappe to fire yet again. Robinson ran into an abandoned lot, but was fenced in

and had to return to the street. “Shoot me, motherfucker,” he demanded, pointing his gun

at Kappe, who had caught up and taken a position behind another car. (J.A. 152.) Other

officers then arrived at the scene, and one of those officers shot at Robinson before

Robinson finally gave up his weapon and was arrested. Robinson had been shot twice,

and he was taken to the hospital.

       Supported by Kappe and Berg’s testimony, the government contended Robinson

fired first, revealing his consciousness of guilt. This was evidence, in addition to the in-

court identifications, upon which the jury could link Robinson to the robbery. Robinson’s

lawyers—he did not testify in his own defense—contended he did not commit the

robbery. But significantly, Robinson does not challenge the legality of Berg’s eyewitness

identification of him as the robber. This is telling because Berg’s identification was the

strongest evidence against him. Instead, the crux of his appeal centers on the

consciousness-of-guilt theory. He contends errors involving the consciousness-of-guilt

argument were not harmless because of confusion or inconsistencies in the testimony of

two of the Wishing Well employees. Michael Wishing and Tyrone Fortune had

misidentified or expressed confusion about certain details of the robber—the color of his

                                              4
hat, the color of his jacket, his age, or some combination of these. Although Wishing and

Fortune testified they did not have a clear look at the robber—as Arthur Berg

did—Robinson contends their misidentifications established doubt that he was the robber.

       Robinson also appeals his sentence. The District Court sentenced Robinson to a

mandatory term of life in prison under the three-strikes law, 18 U.S.C. § 3559(c), on the

counts of robbery and possession of a firearm by a convicted felon. It sentenced him to

eighty-four months imprisonment on the remaining count, to be served consecutive to the

sentence for the other two counts. The District Court ordered restitution in the amount of

$300 and a special assessment of $300. Robinson appeals the mandatory life sentence

imposed under the three-strikes law because the judge, not the jury, found the facts of the

predicate offenses.1 We will affirm. The evidence tying Robinson to the robbery,

especially Berg’s identification, is compelling. Although we affirm the District Court on

all challenged issues, we find that any error would have been harmless.

                                              I

       Robinson’s lawyers attempted to counter the consciousness-of-guilt argument at

trial, contending he did not fire his gun first but was responding to police fire. They

suggested Kappe fired the first shot, implying Berg and Kappe, who had both testified


   1
    The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
over the final judgment of the District Court under 28 U.S.C. § 1291 and jurisdiction to
review the sentence under 18 U.S.C. § 3742. We review evidentiary rulings of the
District Court for abuse of discretion, but our review is plenary regarding interpretations
of the Federal Rules of Evidence. Great Am. Ins. Co. v. Norwin Sch. Dist., 544 F.3d 229,
251 (3d Cir. 2008).

                                              5
that Robinson fired first, were mistaken or trying to cover up for Kappe. Robinson’s

lawyers called as a witness a police internal affairs investigator, Michael Young, who

investigated the scene of the shooting. In the area where Kappe was standing when the

gunfight began, the investigation apparently recovered only bullet casings discharged

from Kappe’s own gun—and no bullets or bullet fragments fired from any gun.2

Robinson contends this lack of evidence means he did not fire first. Moreover, Robinson

suggests the government, during its cross-examination of Young, asked questions beyond

the scope of the direct examination, which was intended to elicit information only about

the findings of the investigation. On cross-examination, Young stated the purpose of the

investigation, which was to determine whether the police officers’ discharge of their

weapons was within the police department’s guidelines. Earlier in the trial, Kappe had

testified that he was not disciplined or suspended as a result of the gunfight. Kappe’s in-

court statements, taken together with Young’s statements about the purpose of the

investigation, Robinson contends, invoked conclusions of the investigation report, which



   2
    The investigation did recover numerous bullet fragments within the larger area of the
gunfight, away from where Kappe stood at its outset. According to Young’s testimony,
some of these bullet fragments were fired from a gun not belonging to a police officer.
Young was not able to say whether these bullets were fired from Robinson’s gun, but
Robinson was the only person, other than a police officer, who allegedly fired a gun at the
scene.
       In addition to the eyewitness testimony of Berg and Kappe, other evidence
suggests Robinson fired his weapon. One of the officers who responded to Lieutenant
Kappe’s call for help, Andrew Harvey, secured Robinson’s revolver. Harvey testified
that he saw another investigator, from the special weapons and tactics unit, remove four
spent casings from Robinson’s gun.

                                             6
are out-of-court statements: if Kappe was not disciplined or reprimanded, Robinson’s

theory goes, the report must have concluded he was justified in discharging his weapon.

We do not agree. Statements from the investigative report were not introduced, and the

testimony was not hearsay. We do not believe the District Court abused its discretion by

permitting this testimony. Moreover, no opinion testimony was elicited about whether

Kappe was justified in firing his weapon.

       Robinson also contends the prosecution impermissibly bolstered the credibility of

Kappe—including his testimony that Robinson fired first—by vouching for the

thoroughness of the internal investigation. During closing arguments, the prosecutor

juxtaposed the investigator’s testimony about the thoroughness of the investigation and

Lieutenant Kappe’s testimony that he was not disciplined.

       . . . They completed a very thorough investigation. Kappe, himself, told you that
       he wasn’t disciplined, he wasn’t suspended, he resumed work right away.

(J.A. 438.) Then the prosecutor told the jury it could “rest assured that if there was any

wrongdoing—” before being cut off by objection. (Id. at 438.) The District Court denied

Robinson’s motion for a mistrial and gave the jury two limiting instructions.

       To find vouching, two criteria must be met: (1) “the prosecutor must assure the

jury that the testimony of a government witness is credible;” and (2) “this assurance must

be based on either the prosecutor’s personal knowledge, or other information not

contained in the record.” United States v. Vitillo, 490 F.3d 314, 327 (3d Cir. 2007)

(quoting United States v. Harris, 471 F.3d 507, 512 (3d Cir. 2006)); United States v.


                                             7
Walker, 155 F.3d 180, 187 (3d Cir. 1998). The defendant must “identify as the basis for

[the] comment an explicit or implicit reference to either the personal knowledge of the

prosecuting attorney or information not contained in the record.” Walker, 155 F.3d at

187. “Vouching is distinguishable from a personal opinion based on the evidence

presented at the trial.” United States v. Dispoz–O–Plastics, Inc., 172 F.3d 275, 283 (3d

Cir. 1999).

       Interpreting the statements in a manner most favorable to Robinson, the context

here could suggest the prosecutor might have intended to invoke conclusions of the

investigation report by telling the jurors Kappe would have been disciplined had there

been wrongdoing. But the statement was not completed. We see no vouching, and in any

event the District Court issued curative instructions. Furthermore, if there was error, it

was harmless, as explained in Part III, below. See Vitillo, 490 F.3d at 329 (noting that

vouching is non-constitutional error subject to harmless error review).

                                             II

       Robinson’s lawyers also tried to present a second theory at trial to counter the

consciousness-of-guilt argument. This alternate theory would have conceded Robinson

fired first but would suggest he fired for reasons unrelated to a consciousness of guilt.

Robinson proffered a toxicology report from the hospital, showing he had tested positive

for cocaine shortly after the robbery. Evidence he was “high,” Robinson claims, would

tend to negate his consciousness of guilt. The prosecution objected to the report because



                                              8
Robinson proferred it without any testimony to interpret the positive test result. The

District Court sustained the objection.

       The report did not confirm how much cocaine was in Robinson’s blood; it only

noted the test for cocaine metabolites was “positive” shortly after the arrest. As the

District Court correctly stated, the report did not provide information about how much

cocaine Robinson used, when he had used it, how it would affect a person of his size, or

most importantly whether it would lead someone to fire at a police officer. Absent

information that would explain the relationship between the cocaine use and the effect on

Robinson’s behavior, the District Court did not abuse its discretion by refusing to admit

the report.

                                              III

       Even if there were errors in this case, “it is highly probable that [they] did not

contribute to the judgment.” Dispoz–O–Plastics, 172 F.3d at 286 (quoting United States

v. Zehrbach, 47 F.3d 1252, 1265 (3d Cir. 1995) (en banc)). All the evidentiary rulings

Robinson contests relate to the gun battle with Lieutenant Kappe after the robbery. But

the evidence tying Robinson to the robbery was compelling. Berg, the eyewitness who

had the best view of the robber, testified that he observed Robinson committing the crime.

He identified clothing Robinson was wearing during the robbery and the red bag he was

carrying at the time of the robbery, which was found at the scene of the shooting. Berg

also stated at trial that the revolver retrieved from the shooting was the same revolver

used during the robbery. Michael Wishing, the former store owner, also identified the

                                              9
revolver and the red bag. Although Wishing and Tyrone Fortune were confused or

mistaken about the color of the robber’s clothing and his age, the jury was entitled to give

less weight to these aspects of their testimony. These men testified that they only saw the

robber momentarily. Undoubtedly, Berg had the best view, for the longest period of time,

and his identification was the most reliable.

       With respect to the prosecutor’s statements during closing arguments, we see no

error. Furthermore, we consider “the scope of the comments and their relationship to the

proceeding” and “the extent of any curative instructions.” Id. In response to the

prosecutor’s statement, the District Court issued two limiting instructions. One came

immediately after the prosecutor’s “rest assured” comment, reminding the jury that “it’s

your recollection of the evidence that governs.” (J.A. 438.) The District Court said the

government can suggest inferences to be drawn from the record but the jury can disregard

arguments if the prosecutor did not base them on the evidence. Later, the District Court

instructed that “what happened internally within the police department . . . is not really of

your concern in your deliberations.” (J.A. 463.) Given the strength of the evidence and

the limiting instructions, we find an error, if any, in this case—involving either the

evidentiary rulings or the prosecutor’s statement—was harmless.

                                                IV

       Section 3559(c) of Title 18 imposes a mandatory life sentence on serious violent

felony offenders convicted of certain prior serious felonies. Robinson challenges the

application of this “three strikes” rule because the judge and not the jury found the facts

                                                10
of the predicate offenses. The law permits this judicial finding of prior convictions.

Almendarez-Torres v. United States, 523 U.S. 224 (1998); United States v. Coleman, 451

F.3d 154, 159–60 (3d Cir. 2006); United States v. Weaver, 267 F.3d 231, 250–51 (3d Cir.

2001).

                                              V

         For the foregoing reasons, we will affirm the judgment of the District Court.




                                              11
