On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Criminal No. 92-00649-01).
Before: Sloviter, Chief Judge, Hutchinson and Roth Circuit Judges
Appellant Mark Green was the subject of a nine-count superseding indictment. He pled guilty to seven counts of fraud-related charges, but proceeded to a trial before a jury on two counts, one charging him with making threats against a federal officer and the other charging him with making threats against the federal officer's family. He was found guilty on both charges. He appeals his conviction on the two counts and his sentence on all nine counts. In the most significant issue presented by this appeal, Green challenges the sufficiency of the evidence to support his conviction for threatening the family of a federal law enforcement officer. We have jurisdiction under 28 U.S.C. § 1291 (1988).
In early 1992, United States Postal Inspector James Bannan was conducting an investigation of mail and credit card fraud involving Mark Green. In the spring of that year, Bannan attempted to serve a grand jury subpoena on Green, which Green refused to accept. During this period, there were two occasions on which Bannan arrested Green. On August 28, Bannan attempted to serve a grand jury subpoena on Green's mother, Patricia Green, at her place of employment, which she also refused to accept.
On August 31, Bannan, who had previously given his work phone number to Green, received a threat on his voice mail at that number. The message stated:
Yeah, Bannan you better cut it the fuck out. I know where you live at motherfucker. Your family is in jeopardy, you better cut it out, or you're going to start a war you can't handle. I'm going to blow up that goddamn blue ass Camaro of yours, your [sic] better cut it the fuck out now. I'm coming for your family motherfucker.
Supp. App. at 1. Bannan then obtained an arrest warrant for Green, and told Green by telephone on September 4, and again on September 17, that a warrant had issued for his arrest in connection with the threat. On September 14, while Bannan was on foot, he spotted Green in a vehicle; Green slowed down, waved to Bannan and then sped away into traffic.
A grand jury returned a two count indictment on November 10, 1992 charging Green with threatening a federal law enforcement officer in violation of 18 U.S.C. § 115(a)(1)(B) (1988); threatening the family of a federal law enforcement officer in violation of 18 U.S.C. § 115(a)(1)(A) (1988); and causing, aiding and abetting these threats in violation of 18 U.S.C. § 2 (1988). On December 1, 1992, a superseding nine count indictment was returned against Green which added to the original two counts seven new counts of mail, bank and credit card fraud and possession and uttering a forged security, which formed the culmination of Bannan's investigation of Green.*fn1 Green pled guilty to the seven new charges, and stood trial on the two threat counts.
At trial, Clarence Webb, a close friend of Green, testified that it was he who left the threatening message on Bannan's machine at Green's request.*fn2 Webb testified that he knew nothing of Bannan's family when he placed the call. Although Webb stated that Green instructed him to threaten Bannan, he made no mention of Green's having suggested in any way that Webb threaten Bannan's family.
Webb also testified that one day while he and Green were driving together with Bannan's license plate number written on a piece of paper on the car's console, he saw Green speak with a friend, a bearded man driving a brown Mustang. Green told Webb he was trying to discover where Bannan lived. Webb testified that Green told him afterwards that he had been unable to find this out because the car was registered to a post office box.
Robert Bonds, a Philadelphia police officer and friend of Green, testified that in the fall of 1992, he met Green by chance in downtown Philadelphia. Green asked Bonds if he would run a check on a certain car to determine if it was stolen and to determine the address of the owner. Bonds, who the government noted is bearded, testified that he drove a brown Mustang and that he complied with the request. Records from the Data Processing Unit of the Philadelphia Police Department show that Bannan's license plate number was checked on September 4, 1992. The records indicate that Bannan's license plate was registered to a fictitious name at a post office box.
At the close of the government's case, Green moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29, which was denied. During its closing argument the government stated to the jury, "so his [Bannan's] license plate number was run three (3) days after the threat, and it was run at the request of Mark Green." App. at 3-101. After Green's counsel objected that the government had misstated the ...