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United States v. Kale

April 26, 2010


The opinion of the court was delivered by: Padova, J.



Trance Kale was charged in a Superseding Indictment with one count of conspiracy to interfere with interstate commerce by robbery, in violation of 18 U.S.C. § 1951(a) (Count One); five counts of interference with interstate commerce by robbery (Hobbs Act robbery) and aiding and abetting, in violation of 18 U.S.C. §§ 1951(a) and 2 (Counts Two, Four, Seven, Nine, and Eleven); five counts of using and carrying a firearm during and in relation to a crime of violence and aiding and abetting, in violation of §§ 18 U.S.C. 924(c)(1) and 2 (Counts Three, Five, Eight, Ten, and Twelve); and two counts of possession with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1) (Counts Six and Thirteen). The charges arose out of Kale's alleged participation in the armed robberies of Davis Pharmacy on November 10 and 11, 2008, Polanco Grocery on November 13, 2008, Ana Grocery on November 17, 2008, and Haussmann's Pharmacy on November 18, 2008.

On October 9, 2009, a jury convicted Kale of the conspiracy charge and the charges arising out of the Haussmann's Pharmacy and second Davis Pharmacy robberies (Counts One, Four, Five, Six, Eleven, Twelve, and Thirteen). At the close of the Government's case, Kale moved under Federal Rule of Criminal Procedure 29(a) for a judgment of acquittal, which we denied. Kale now moves for a judgment of acquittal or for a new trial under Rules 29(c) and 33 of the Federal Rules of Criminal Procedure. For the following reasons, we deny the Motion.


In deciding a motion for judgment of acquittal pursuant to Rule 29, a court must view all of the evidence introduced at trial in the light most favorable to the Government and uphold the verdict so long as any rational trier of fact "'could have found proof of guilt beyond a reasonable doubt based on the available evidence.'" United States v. Smith, 294 F.3d 473, 476 (3d Cir. 2002) (quoting United States v. Wolfe, 245 F.3d 257, 262 (3d Cir. 2001)). "The court is required to 'draw all reasonable inferences in favor of the jury's verdict.'" Id. (quoting United States v. Anderskow, 88 F.3d 245, 251 (3d Cir. 1996)). The court may not "usurp the role of the jury" by weighing the evidence or assessing the credibility of witnesses. United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005) (citing United States v. Jannotti, 673 F.2d 578, 581 (3d Cir. 1982) (en banc); and 2A Charles A. Wright, Federal Practice & Procedure (Crim. 3d) § 467, at 311 (2000)). Thus, the defendant bears an "'extremely high'" burden when challenging the sufficiency of the evidence supporting a jury verdict, United States v. Iglesias, 535 F.3d 150, 155 (3d Cir. 2008) (quoting United States v. Lore, 430 F.3d 190, 203-04 (3d Cir. 2005)), and the Government "may defeat a sufficiencyof-the-evidence challenge on circumstantial evidence alone," id. at 156 (citing United States v. Bobb, 471 F.3d 491, 494 (3d Cir. 2006)). A finding of insufficiency therefore "should 'be confined to cases where the prosecution's failure is clear.'" Smith, 294 F.3d at 477 (quoting United States v. Leon, 739 F.2d 885, 891 (3d Cir. 1984)).

Pursuant to Rule 33, we may grant a new trial upon the defendant's motion "if the interest of justice so requires." Fed. R. Crim. P. 33. "'Whether to grant a Rule 33 motion lies within the district court's sound discretion.'" United States v. Ortiz, 182 F. Supp. 2d 443, 446 (E.D. Pa. 2000) (citation omitted). A court must grant a motion for new trial if it finds that there were cumulative errors during the trial that, "'when combined, so infected the jury's deliberations that they had a substantial influence on the outcome of the trial.'" United States v. Copple, 24 F.3d 535, 547 n.17 (3d Cir. 1994) (quoting United States v. Thornton, 1 F.3d 149, 156 (3d Cir. 1993)). In evaluating a Rule 33 motion, we do not view the evidence favorably to the Government, but rather exercise our own judgment in evaluating the Government's case. United States v. Johnson, 302 F.3d 139, 150 (3d Cir. 2002). "However, even if a district court believes that the jury verdict is contrary to the weight of the evidence, it can order a new trial 'only if it believes that there is a serious danger that a miscarriage of justice has occurred -- that is, that an innocent person has been convicted.'" United States v. Silveus, 542 F.3d 993, 1004-05 (3d Cir. 2008) (quoting Johnson, 302 F.3d at 150).


A. The Motion for Judgment of Acquittal

Kale seeks a judgment of acquittal on all counts of conviction on the ground that there was insufficient evidence to prove that he was involved in the conduct charged in the Superseding Indictment. We address each count of conviction below.

1. Counts Four and Eleven: Hobbs Act robbery

Kale argues that there was insufficient evidence to support his conviction of interference with interstate commerce by robbery, or Hobbs Act robbery, and emphasizes that the Government failed to produce testimony other than from his co-defendants that identified him as one of the robbers. Kale further argues that the only evidence implicating him in the robberies was the testimony of his three co-defendants, Aaron Conquest, James Heath, and Kerry Young, who cooperated with the Government in exchange for the Government's recommendation of reduced sentences. Additionally, Kale argues that the Government's evidence with respect to the impact of his actions on interstate commerce, which he contends consisted only of invoices showing that Davis Pharmacy purchased controlled substances from a pharmaceutical supplier in New Jersey, was insufficient to prove that his actions affected interstate commerce.

The Hobbs Act provides as follows:

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires to do so, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined . . . or imprisoned . . . or both.

18 U.S.C. § 1951(a). The statute further defines "robbery" as "the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining." 18 U.S.C. § 1951(b)(1). To establish criminal liability under an aiding and abetting theory, the Government must prove that (1) another person committed the underlying substantive offense -- that is, interference with interstate commerce by robbery -- and (2) the defendant "'knew of the substantive-offense commission and acted with the intent to facilitate it.'" United States v. Cartwright, 359 F.3d 281, 287 (3d Cir. 2004) (quoting United States v. Salmon, 944 F.2d 1106, 1113 (3d Cir. 1991)).

We find that the Government introduced sufficient evidence at trial to show that the robberies of Davis Pharmacy on November 11 and Haussmann's Pharmacy on November 18 involved the taking of property by force, violence, or fear of injury. Eliot Weinberg, a co-owner of Davis Pharmacy, was present on the morning of November 11, and testified that three individuals came into the pharmacy, brandished a shotgun and a handgun, demanded specific drugs, and stole money and a laptop computer. (9/22/09 N.T. Excerpt at 4-9.)*fn1 Edward Tanack, another co-owner of Davis Pharmacy, was also present on the morning of November 11, and testified that three men came into the pharmacy, brandished a sawed-off shotgun and a handgun, took money from the cash register, and demanded drugs. (9/22/09 N.T. at 61-63.) Edward Sherman, a pharmacist at Haussmann's Pharmacy, testified that on November 18, a group of robbers pointed guns at the employees and customers in the store, demanded and took a variety of drugs, and hit him in the head with a handgun. (9/23/09 N.T. at 151-52.)

We also find that the Government presented sufficient evidence to show that Kale acted as a getaway driver for both the November 11 Davis Pharmacy and November 18 Haussmann's Pharmacy robberies and entered Davis Pharmacy in conjunction with the November 11 robbery. Conquest, Heath, and Young testified that they committed the robberies with Kale, that Kale used his girlfriend's car to drive them to the stores they robbed, and that they carried guns, one of which Kale supplied, during the robberies. (9/22/09 N.T. Excerpt at 93, 95, 102-03, 104, 108-09; 9/23/09 N.T. at 55, 78-79, 82, 91, 127, 168, 177, 180-81.) Although Kale suggests that we should not credit his co-defendants' testimony because they had incentive to provide helpful testimony in exchange for better plea deals or leniency at sentencing, we may not evaluate the credibility of witnesses.

Brodie, 403 F.3d at 133 ("Courts must be ever vigilant in the context of [Federal Rule of Criminal Procedure] 29 not to usurp the role of the jury by weighing credibility and assigning weight to the evidence, or by substituting [their] judgment for that of the jury."). We therefore will not accept Kale's invitation to discount the testimony of Conquest, Heath, and Young simply because they pled guilty and cooperated with the Government. Moreover, the Government presented evidence from other sources that showed Kale's participation in the robberies. Kale's mother and sister both testified that upon returning to the Kale residence after the Davis Pharmacy robbery on November 11, Kale and his co-defendants bragged about doing a "sting." (9/22/09 N.T. Excerpt at 46, ...

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