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U.S. v. Mitchell

May 14, 1998

UNITED STATES OF AMERICA
v.
BYRON MITCHELL, APPELLANT



Before: Sloviter, Lewis* and Garth, Circuit Judges

The opinion of the court was delivered by: Sloviter, Circuit Judge.

On Appeal from the United States District Court for the Eastern District of Pennsylvania

(D.C. Crim. No. 96-cr-00407)

Argued January 21, 1998

Opinion filed May 14, 1998

OPINION OF THE COURT

In this case, we must examine whether there is any basis to justify the introduction into evidence of an anonymous note that was plainly hearsay. Appellant Byron Mitchell, who was convicted of conspiracy to commit and commission of Hobbs Act robbery, in violation of 18 U.S.C. § 1951, and use of and carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c), contends that the district court committed reversible error by permitting an anonymous note linking him to the getaway car to be admitted into evidence as a present sense impression, an excited utterance, or a statement containing sufficient indicia of reliability under the residual catch all exception previously sited in Federal Rule of Evidence 803(24).

I.

The facts which appear not to be disputed are that between 9:00 a.m. and 9:15 a.m. on September 12, 1991 two men waited in a check cashing store at 29th and Girard Avenue in North Philadelphia, when an armored truck made a delivery of currency to the store. The assailants were armed with handguns and attacked the delivery man as he entered the store, robbing him of currency in excess of $20,000. The two men fled the scene in a beige car driven by a third person, and engaged in gunfire with those in the armored truck before they sped away. There was evidence that the two men who robbed the agency were William Robinson and Terrance Stewart, both dead at the time of trial. Mitchell was indicted on the theory that he was the third conspirator and operator of the getaway car.

During trial, the police officers testified that at 9:37 a.m. on September 12, 1991 the 911 radio room received an anonymous call in which the caller stated: "[I]n the 1660 block . . . of 32nd street, these guys just dumped this beige car. Apparently, they stole it [be]cause they jumped into another car and took off." The caller also gave the license plate number of the deserted car, which turned out to be the beige getaway car that had been seen at the scene of the robbery. That car had been stolen shortly before the robbery at a gas station not far from the site of the robbery.

At 10:00 a.m., based on the 911 call, police officers found the beige car where the 911 caller had stated it was. A search by FBI agents recovered latent fingerprints and two anonymous notes from the front seat. One note contained the license plate number of the getaway car itself, ZPR-274, and is not challenged on appeal.1 The other note, which is the subject of this appeal, stated: "Light green ZPJ-254. They changed cars; this is the other car." A check on the light green car revealed that it was a green 1978 Buick registered to Anita Young, then fiancee and later wife of defendant Mitchell.

That afternoon, an FBI agent who was part of a surveillance unit searching for that car observed Mitchell park the green Buick and enter Young's house. He exited shortly thereafter and drove away, with the agent following him. When the agent had grounds for a stop because of traffic violations, he searched Mitchell who was carrying $1,400 dollars in small bills. He also had a receipt from a lawyer for a $600 payment in cash which was made earlier that day.

In addition to the testimony about the note referencing the light green car that led the authorities directly to Mitchell, the government presented testimony from Kim Chester, the girlfriend of Robinson, one of the other two robbers, who testified that in early September she overheard the three men discuss the robbery and discuss who had a gun and the need to get a car for the robbery. She further testified that while she was waiting for a bus on the morning of September 12, 1991, Robinson, Stewart and Mitchell drove by in Anita Young's green car and picked Chester up before 8:00 a.m. and drove her to work. While in the car, she heard them discussing how to obtain a getaway car, and heard Mitchell say he was not going to use Young's car for that purpose.

The government also presented testimony of Duane Johnson, an FBI agent specializing in fingerprint analysis, who testified that there were nine points of similarity between two of the fingerprints found in the getaway car and those taken from Mitchell. One fingerprint was on the outside door handle and the other was on the gear shift of the car. Agent Johnson conceded that it was common to have up to one hundred points of comparison when identifying an individual by fingerprint, but stated that he had made identifications on as little as seven.

Except for the testimony of Eileen Lamper, who testified that Mitchell was friends with one of the other robbers (thus supporting Chester's testimony), the other witnesses did not inculpate Mitchell per se; they established that the ...


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