The opinion of the court was delivered by: Gene E.K. Pratter, J.
Defendant Michael Matthews calls upon the Court to reject the jury's finding that, among other things, he conspired to and attempted to commit robbery in violation of 18 U.S.C. § 1951 ("The Hobbs Act"), that he carried or used a firearm during or in relation to a crime of violence, or that he aided and abetted these crimes. Specifically, Mr. Matthews challenges the sufficiency of the evidence presented to the jury by the Government to sustain the guilty verdicts. In addition, Mr. Matthews asserts that the felon in possession of a firearm statute is unconstitutional. Mr. Matthews has moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29 ("Rule 29") or, in the alternative, for a new trial under Federal Rule of Criminal Procedure 33 ("Rule 33").
Having carefully considered the parties' briefs, and having reviewed the trial transcripts and the transcript of the July 25, 2011 oral argument on these Motions, the Court concludes that it cannot and should not disrupt the jury's reasonable conclusion that Mr. Matthews is guilty of these crimes.
FACTUAL AND PROCEDURAL BACKGROUND
Evidence presented at trial established that, in May and June of 2009, Michael Anderson was planning to rob the Express Check Cashing store located at 5300 Tabor Road, Philadelphia, PA. To that end, Mr. Anderson recruited Shante Jenkins, Ambyr Jones, and Defendant Michael Matthews to serve as "look-outs," and developed a plan by which he and others would disguise themselves to observe and then rob the store. Evidence presented by the Government, including the testimony of Mr. Anderson, Ms. Jenkins, Ms. Jones, the manager of the check cashing store, and several police officers, as well as physical evidence recovered at the scene, convinced the jury that Mr. Matthews had played a significant role in planning and, eventually, attempting to execute the robbery.
According to the testimony of the manager of the Express Check Cashing store ("Express Manager") and of the arresting officers, the following events took place between June 6 and June 12, 2009: Toward the end of May or June, police were notified by the Express Manager that two individuals had been loitering near the store, and that these two were wearing concealing female Muslim clothing, but did not look or walk like women. Tr. 12/7/10 at 11, Tr. 12/8/10 at 36-38. On June 6th, the Express Manager reported to the police that two similarly dressed individuals were sitting outside the store in a tan or gold vehicle, and she showed police the store's video surveillance footage depicting these events. Tr. 12/7/10 at 12-16; Tr. 12/8/10 at 39-44. In response to the Express Manager's concerns, Police Officers Frisco, Pomeroy, Storm and Sanchez established surveillance outside the store. Tr. 12/7/10 at 16-17. On the morning of June 12, 2009, after several days of surveillance, Officer Storm observed a small, gold automobile outside the check cashing store. Tr. 12/7/10 at 180. Officer Storm saw Mr. Anderson in the driver's seat of the gold car. Tr. 12/7/10 at 183. Officer Storm also observed Mr. Matthews walking away from the vehicle carrying a green backpack or book bag. Tr. 12/7/10 at 184-85. Officer Storm believed these males fit both the description and the past behavior of the individuals described in the Express Manager's police report, although they were no longer wearing Muslim clothing. Tr. 12/7/10 at 190. Officer Storm observed that Mr. Matthews and Mr. Anderson appeared to be talking to each other by cell phone. Tr. 12/7/10 at 185-86, 212-14. While talking on his cell phone, Mr. Matthews walked past the check cashing store and stopped at a bus stop at the corner of Tabor Road and Adams Avenue, Tr. 12/7/10 at 185-89; however, Officer Storm testified, Mr. Matthews did not look in the direction of oncoming buses, but in the opposite direction, toward Mr. Anderson, who continued to drive the gold car very slowly toward the check cashing store.
Id. Eventually, Officer Storm was able to view the license plate on the rear of the car, which he testified was crooked and appeared to be partially detached, as though it had been affixed hurriedly; upon running a records check on the tag number, Officer Storm learned that the license was stolen. Tr. 12/7/10 at 188-89. Officers Frisco and Pomeroy soon arrived at the scene, and the police detained Mr. Anderson, and stopped Mr. Matthews at the bus stop. Tr. 12/7/10 at 23-29, 50-52, 191. Mr. Matthews told Officer Frisco that he was waiting for a bus, on his way to work, and that the bag he carried was not his own, but belonged to a friend. Tr. 12/7/10 at 31, 52. From inside the book bag, police recovered an inoperable Rino Galesi .22 caliber handgun, duct tape, and black nylon gloves. Tr. 12/7/10 at 31, 53-55. Police also recovered cell phones from both Mr. Matthews and Mr. Anderson, and female Muslim clothing from the back seat of the gold car. Tr. 12/7/10 at 33, 195-97; Tr. 12/8/10 at 245-47.
At trial, Mr. Anderson, who was a cooperating witness, testified that it was initially his own idea to rob the check cashing store, and testified as to how he observed the operations and employees of the store, and recruited others to assist him in the robbery. Tr. 12/8/10 at 86- 95. On three consecutive days in May 2009, Mr. Anderson attempted to rob the store. Tr. 12/8/10 at 98. First, Mr. Anderson arranged for his neighbors, Ambyr Jones and Shante Jenkins, and his girlfriend Kristian Smith to assist him as "look-outs" (to observe the store in advance of Mr. Anderson's attempts, and to watch for approaching police or customers while Mr. Anderson committed the robbery), and purchased female Muslim garb to hide his identity. Tr. 12/8/10 at 99-100; 103-05. During or after these three failed attempts, Mr. Anderson told Mr. Matthews about his plan, and Mr. Matthews expressed his interest in assisting with the robbery, because he had been laid off from his job*fn1 and needed money. Tr.12/8/10 at 85-86, 109-10.
Ms. Jones and Ms. Jenkins testified at trial about their own and Mr. Matthews's roles in the robbery scheme. Tr. 12/7/10 at 78-126, 229-76. According to their testimony, Ms. Jones and Ms. Jenkins lived together in an apartment building across the hallway from Mr. Anderson, but met Mr. Matthews only several weeks before his June 12th arrest. Tr. 12/7/10 at 79-81, 235-36. Initially, the two women served as look-outs during the planning and execution of the robbery scheme. Ms. Jones testified that, as a look-out, she understood that she was to call Mr. Anderson, Mr. Matthews or Ms. Jenkins if she saw any police near the check-cashing store. Tr. 12/7/10 at 92-94. Ms. Jenkins testified that Mr. Matthews also served first as a look-out, Tr. 12/7/10 at 239, and that she drove Mr. Matthews to his look-out position on more than one occasion. Tr. 12/7/10 at 239-40. Both Ms. Jones and Ms. Jenkins testified that Mr. Matthews was involved in discussions with Mr. Anderson about obtaining a gun with which "to scare the lady that opened the check cashing place," to "strike her with it," or to "knock the store employee out," Tr. 12/7/10 at 87, 242, and that the co-conspirators, including Mr. Matthews, planned to split the proceeds of the robbery evenly among themselves. Tr. 12/7/10 at 88, 238; Tr. 12/8/10 at 110-11. According to the two women, Mr. Matthews's role changed over time, from look-out to active participant, and eventually Mr. Matthews discussed entering the check cashing store himself to rob it, after Mr. Anderson exhibited some reluctance to continue with the scheme. Tr. 12/7/10 at 95-98, 241.
With respect to the June 6th robbery attempt, the testimony of the co-conspirators is less consistent: Ms. Jones and Ms. Jenkins testified that Mr. Matthews was supposed to enter the store with Mr. Anderson and overpower the employee, Tr. 12/7/10 at 84-86, 89, 124, 245, but Mr. Anderson recalled that Mr. Matthews was merely a look-out, while Ms. Smith drove the car, and Mr. Anderson approached the store dressed in female Muslim garb and carrying a lady's purse, in which he had placed duct tape and a gun. Tr. 12/8/10 at 116-20. Ultimately, the June 6th robbery attempt was aborted, Tr. 12/7/10 at 94; Tr. 12/8/10 at 123-24, and Mr. Anderson called off the plan in its entirety. Tr. 12/8/10 at 126.
However, later that week, Mr. Anderson noticed that an armored car had unloaded what appeared to be a large amount of cash at the store, renewing his interest in the robbery. Tr. 12/8/10 at 126-28. Mr. Matthews, he testified, insisted that the robbery proceed the following day. Tr. 12/8/10 at 128, 163-64. In planning their next attempt, the two men followed one of the employees of the check cashing store home to learn her address, so that they could threaten her with this information if she refused to assist them. Tr. 12/8/10 at 128-30. Mr. Anderson testified that, on the morning of June 12th, Mr. Matthews arrived at his apartment, where Mr. Anderson gave him the lady's purse from the previous attempt, which now contained the gun, duct tape, gloves, and Muslim women's clothing. Tr. 12/8/10 at 164-66. Mr. Matthews, however, declined to wear the original disguise, and borrowed a different bag from Ms. Jones, who lived next door. Tr. 12/8/10 at 165-67. Ms. Jones testified that she provided Mr. Matthews with an empty green book bag for the purpose. Tr. 12/7/10 at 98-100. Mr. Anderson further testified that, during the drive to the store, Mr. Matthews transferred the contents of the lady's purse to the green book bag. Tr. 12/8/10 at 167-74.
Upon arriving at the check cashing store, Mr. Anderson testified, the two men set their cellular telephones in a way that made it easy for them to communicate with each other, and Mr. Matthews waited while Mr. Anderson affixed the stolen license plate to the car. Tr. 12/8/10 at 175. Then Mr. Anderson returned to the car, while Mr. Matthews walked toward the bus stop. Tr. 12/8/10 at 176, 179. According to Mr. Anderson, the plan then required him to drive the getaway vehicle and keep watch for police, while Mr. Matthews waited for the store employee to arrive, at which point Mr. Matthews would approach the employee from behind before she entered the store, put the gun to her back, and tell her that if she ever wanted to make it back to her home address, she would cooperate by turning off the store alarm and putting money in a bag for Mr. Matthews. Tr. 12/8/10 at 181. Before the store employee arrived, however, police arrested both men.
On January 28, 2010, a grand jury in the Eastern District of Pennsylvania returned a superseding indictment against Mr. Matthews charging him with five counts: conspiracy to commit robbery which interfered with interstate commerce, in violation of 18 U.S.C. § 1951 ("The Hobbs Act") (Count One); attempted robbery which interfered with interstate commerce, in violation of the Hobbs Act, on June 6, 2009 (Count Two) and on June 12, 2009 (Count Three); carrying and using a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1) (Count Four); and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count Five). Mr. Matthews was also charged with aiding and abetting Counts One through Four, in violation of 18 U.S.C. § 2. Mr. Andrews pleaded guilty and only ...