The opinion of the court was delivered by: Bartle, C.J.
Before the court is the post-verdict motion of Troy Holmes pursuant to Rule 29 of the Federal Rules of Criminal Procedure for judgment of acquittal.
Holmes was indicted on: (1) one count of conspiracy to commit carjacking in violation of 18 U.S.C. § 371; (2) one count of carjacking in violation of 18 U.S.C. § 2119; and (3) one count of using and carrying a firearm during a crime of violence in violation of 18 U.S.C. §§ 924(c)(1) and (2). The jury returned a verdict of guilty on all three counts. At the close of trial, Holmes made an oral motion for judgment of acquittal, which we denied. Holmes's attorneys filed a written motion for a Rule 29 judgment of acquittal on March 10, 2009, and a Supplemental Memorandum in support of that motion on May 26, 2009. The government filed its response on June 22, 2009.
Pursuant to Rule 29(c), "if the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal." Fed. R. Crim. P. 29(c)(2). Where the court finds that a "rational trier of fact could have found proof of guilt beyond a reasonable doubt based on the available evidence," a Rule 29 post-verdict motion for judgment of acquittal will not be granted. United States v. Wolfe, 245 F.3d 257, 262 (3d Cir. 2001). In this posture, the court reviews the record in the light most favorable to the prosecution. Id.
On July 29, 2007, at approximately 2:30 a.m., Issa Ouattara parked his Lexus on 6th Street in Philadelphia, Pennsylvania. He and his girlfriend, Jelena Radulovic, exited the car and began to walk north, to the nearby Palmer Social Club at 6th and Spring Garden Streets. When they were between 30 and 50 feet from the car, Ouattara heard someone say "yo." He turned around to see two men, one of whom----later identified as Brown----was pointing a gun at him. The other, whom he later identified as defendant Holmes, was a large man, standing 6 feet tall and weighing 260 pounds.
Brown demanded that Ouattara surrender his car keys, money, cell phone, and phone card. Ouattara complied. Brown then ordered Ouattara and Radulovic to depart the scene, and they did so. Holmes looked on silently at Brown's side as all of this transpired.
After leaving Brown and Holmes, Ouattara almost immediately jumped into a police cruiser, which happened to be parked in front of the Palmer Social Club, and quickly explained the preceding events to Officers Lauf and Jachimski. The three drove south on 6th Street in pursuit of the Lexus. They saw the car stopped at a red light and drove up beside it. From inside the Lexus, Brown, the driver, pointed a handgun at the officers and then drove through the red light. The police cruiser followed the Lexus until the latter struck a limousine at the intersection of 6th and Market Streets. Brown and Holmes fled from the car on foot in the same direction. Brown was found underneath a car near the Rohm and Haas Building, located at the corner of that intersection. Holmes was chased through the arcade at the Rohm and Haas Building and then arrested on 6th Street. Ouattara, who was on the scene when both men were seized by police, immediately identified them as his assailants. Less than ten minutes had passed between the time the crimes had occurred and the arrest of Brown and Holmes.
A handgun bearing the serial number 294303 was found on the front floor of the driver's side of the Lexus. Ouattara's cellular telephone and Radulovic's purse were also found inside the car.
The government presented evidence that Brown and Holmes lived within a half-mile of each other in Camden, New Jersey.
The jury found Holmes guilty of one count of conspiracy to commit carjacking, in violation of 18 U.S.C. § 371. Conspiracy is established when the government has shown: "(1) a unity of purpose between two or more persons; (2) an intent to achieve a common goal; and (3) an agreement to work together." United States v. Helbling, 209 F.3d 226, 238 (3d Cir. 2000). The defense moves for Holmes's acquittal on the basis that he lacked the requisite intent to commit conspiracy and that he was merely a bystander at the scene of the crimes.
The government may establish the elements of conspiracy "entirely through circumstantial evidence." United States v. Kapp, 781 F.2d 1008, 1010 (3d Cir. 1986). "[T]he existence of a conspiracy can be inferred 'from evidence of related facts and circumstances from which it appears as a reasonable and logical inference, that the activities of the participants ... could not have been carried on except as the result of a preconceived scheme or common understanding." Id. (citing United States v. Ellis, 595 F.2d 154, 160 (3d Cir. 1979)). In this case, the circumstantial evidence weighs heavily against Holmes. A reasonable jury could certainly find that Holmes's presence during the holdup of Ouattara and Radulovic at gunpoint and Holmes's flight in the victims' car with Brown were evidence of his intent to participate in a conspiracy and commit carjacking.
As our Court of Appeals stated in United States v. Smith, "to sustain a conspiracy conviction, the 'contention that the evidence also permits a less sinister conclusion is immaterial. To sustain the jury's verdict, the evidence does not need to be inconsistent with every conclusion save that of guilt'." 294 F.3d 473, 478 (3d Cir. 2002) (citing United States v. Dent, 149 F.3d 180, 188 (3d Cir. 1998)). As noted above, the court must "draw all reasonable inferences in favor of the jury's verdict." United States v. Anderskow, 8 ...