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United States v. Shabazz

April 16, 2009

UNITED STATES OF AMERICA
v.
BILIAL SHABAZZ, APPELLANT



Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Criminal Action No. 2-06-cr-00710-1) District Judge: Honorable Eduardo C. Robreno.

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

PRECEDENTIAL

Submitted Under Third Circuit LAR 34.1(a) March 24, 2009

Before: RENDELL, AMBRO, and JORDAN, Circuit Judges

OPINION OF THE COURT

A jury found Bilial Shabazz guilty of one count of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C § 1951(a), one count of Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), and one count of using a firearm during or in relation to a crime of violence, in violation of 18 U.S.C § 924(c). Shabazz was sentenced to a total of 360 months' imprisonment. He now challenges his conviction and sentence.*fn1 We affirm both.

I. Facts and Procedural History

A grand jury in the Eastern District of Pennsylvania returned a three-count indictment against Shabazz, Christopher Young, Steven Patton and Bruce Johnson, all in connection with the December 3, 2006 robbery of a Wal-Mart at Roosevelt Boulevard in Philadelphia. Patton, Johnson and Young each pled guilty, while Shabazz went to trial.

The robbery was planned by Patton, an assistant manager at the Roosevelt Boulevard Wal-Mart, and Johnson, who had previously worked with Patton at that store, but at the time was an assistant manager at a Wal-Mart in Cherry Hill, New Jersey. They chose to target the Roosevelt Boulevard store because they knew that, during the holiday-shopping season, the store would have large amounts of cash in its safe. According to both Patton and Johnson, Johnson recruited his brother-in-law, Shabazz, to carry out the robbery, and Shabazz later recruited Young. Patton claimed that he first met Shabazz at a McDonald's near the Roosevelt Boulevard store shortly before the robbery, where Johnson, Shabazz and Patton met to complete the plan. According to Patton, they decided that Patton would let Shabazz and his accomplice into the store around 2:00 a.m., when most of the overnight employees would be out on their lunch break, and that Patton would be taken to the safe room and tied up to make it look like he was a victim of the robbery.

At approximately 2:15 a.m. on December 3, Patton let two men into the store, whom he later identified as Shabazz and Young. As Patton led them to the safe room, they encountered Richard Tate, a store employee, who had come to the front register to ask Patton to cash him out. The two robbers then led Patton and Tate to the safe room at gunpoint. Once there, Patton was ordered to open the safe, while Tate was ordered to lie on the floor face down and then was bound with duct tape. After the safe was opened, Patton was also ordered to the floor and his hands were duct-taped. The two robbers left the store with approximately $351,563 in cash.

Patton then freed both himself and Tate and called the police. Initially, Patton presented himself as a victim of the robbery. After viewing the surveillance video, which showed him opening the store's door to allow the two men in, Patton admitted his involvement in the crime. He directed the police to Johnson, who in turn implicated Shabazz and Young. On February 1, 2007, Shabazz was arrested in Miami, Florida. While he was being processed at the Miami-Dade County Jail, Detective Wayne McCarthy found $2,400 in cash in Shabazz's wallet and remarked: "That's a lot more money than I carry around in my pocket." Shabazz allegedly replied: "Well, there's plenty more where that came from."

In March 2007, Shabazz filed a pretrial motion to have that comment suppressed on the ground that no Miranda warning had been issued prior to Detective McCarthy's initiating a conversation with him about the amount of money in his wallet. The District Court denied the motion, holding that the statement was not the product of a custodial interrogation.

Shabazz's trial began on August 14, 2007. Patton testified about planning the robbery with Johnson and Shabazz, and about Shabazz's alleged actions in carrying it out. During his testimony, the Government introduced footage of the robbery from the store's surveillance cameras, which Patton narrated over Shabazz's objection. The footage showed the man Patton identified as Shabazz walking toward the store from the parking lot, entering the store, grabbing Tate by the store register and putting a gun to his neck, shoving Tate to the ground in the safe room and putting a gun to his head, taking money from the safe and putting it in a trash bag and his clothing, and leaving the safe room with the money. In addition, Patton identified (also over objection) Shabazz as the man holding a gun in a still picture taken from the robbery.

Johnson testified about coming up with the idea for the robbery with Patton and then recruiting Shabazz to execute it. Johnson described receiving multiple phone calls from Shabazz on the day of the robbery, including one shortly before it took place, during which Shabazz allegedly informed Johnson that he (Shabazz) was just outside the store and ready to be let in by Patton. Johnson also testified that he spoke with Shabazz twice after the robbery and that, just ...


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