United States District Court, Eastern District of Pennsylvania
MEMORANDUM RE POST TRIAL MOTION
MICHAEL M. BAYLSON, U.S.D.J.
The defendant, Ronald Moon, was tried by a jury on one count of bank robbery in violation of 18 U.S.C. § 2113(a), and was found guilty. In a Motion for New Trial, he makes two contentions. First, that the Court gave the jury an instruction which was erroneous and prevented him from asserting a defense. Second, a remark by the prosecutor during his closing argument violated the defendant’s right against self-incrimination.
Initially, the Court finds that the evidence of defendant’s guilt was very strong. The bank robbery, in the residential Chestnut Hill section of Philadelphia at 11:00 a.m. on August 20, 2012, was committed by an individual wearing female Muslim garb covering the facial features, who handed a note to a teller demanding money. The bank teller gave the robber several bundles of cash which were stuffed into a striped bag and the robber then exited the bank.
A private citizen testified at trial, that she was driving near the bank and saw someone who appeared to be a man but was dressed in female Muslim garb, exiting the bank, walking quickly and getting into a maroon vehicle. She followed the car for a short time and had the opportunity to take a photograph from her cell phone of the car’s license plate which she showed to a police officer who had come to the bank after the robbery. As a result of very prompt police work, the license plate was traced to the defendant with an address in Abington Township. Police promptly found the car, which was being driven by a third party, Naijah Glenn, near defendant’s home address. When the police stopped the car, Ms. Glenn got out and was found to have a large amount of cash on her person. Defendant was a passenger in the vehicle.
The amount of money recovered closely corresponded with the amount that was stolen from the bank. After given his Miranda rights, defendant made a confession that he robbed the bank.
At trial, defendant’s counsel, by use of bank surveillance photos, suggested by cross-examination of various prosecution witnesses, that another unnamed individual who was partially seen on the bank video surveillance films had committed the robbery, perhaps along with Ms. Glenn.
B. No Error in Court’s Charge
At trial, counsel advised the Court Ms. Glenn had been subpoenaed by both the prosecution and defense. When the Court learned that she was present outside the Courtroom, the Court held a hearing out of the presence of the jury at which time the Court advised Ms. Glenn of her rights of self-incrimination and she stated that she would assert her rights and would refuse to testify if called.
After a discussion with counsel prior to closing arguments and the charge, the Court determined that fairness to all sides warranted the following charge to the jury that the jury should not “speculate” about Ms. Glenn – simply because her testimony was not available to either side:
“You may not speculate about [Ms.] Glenn or any other person being or involved or not involved in this robbery. The only issue for you to decide is whether the Government has proved Ronald Moon guilty beyond a reasonable doubt.” The Court strongly rejects the defense arguments in its post-trial memorandum that the Court precluded a defense. The Court did not exclude any evidence whatsoever and did not preclude any defense arguments whatsoever. The Court allowed the jury to determine whether Ms. Glenn and the other person were involved – but not to “speculate.” The jury could have convicted defendant by concluding defendant and Ms. Glenn or the other person were involved.
The defendant’s reliance on Holmes v. South Carolina, 547 U.S. 319 (2006) is not any support for the grant of a new trial in this case, because in Holmes, the Court actually excluded certain evidence from being admitted.
Defense counsel was well within his rights in trying to argue that another individual, partially seen on the bank video, in fact committed the robbery rather than the defendant, and that Ms. Glenn assisted this other individual by driving the car. However, Ms. Glenn had not been charged and was not on trial. The other individual was completely unidentified. Therefore, the Court’s charge was simply to instruct the jury not to “speculate, ” about Ms. Glenn and that the only issue before the jury was whether the government had proved the defendant guilty beyond a reasonable doubt.
Although counsel and the Court did not find any Third Circuit cases on these facts, there are cases from the Second Circuit that ...