Opinion
Criminal Action No. 2003-109.
May 11, 2004
MEMORANDUM
The Defendant James Suggs ("Suggs") was indicted and charged with one count of armed bank robbery, one count of carrying a firearm in connection with that robbery, and two counts of unarmed bank robbery.
Count I charged Suggs with armed bank robbery in violation of 18 U.S.C. § 2113(d), and Count II charged Suggs with the knowing possession and use of a firearm in the commission of a violent crime in violation of 18 U.S.C. § 924(c). Following a jury trial, on November 21, 2003, the jury acquitted Suggs on Counts I and II, which concerned a bank robbery on February 22, 2002, of the Commonwealth Bank (now Citizens Bank) at 3 East Germantown Pike, East Norriton Township, Pennsylvania.
Counts III and IV both charged Suggs with unarmed bank robbery in violation of 18 U.S.C. § 2113(a). The jury convicted the Defendant on both Count III — which concerned a bank robbery on March 29, 2002, of the Commonwealth Bank (now Citizens Bank) at 2701 Ridge Pike, Norristown, Pennsylvania — and Count IV, which concerned a bank robbery on January 3, 2003, of the Commonwealth Bank at 521 West Main Street, Lansdale, Pennsylvania.
In an Order dated May 6, 2004, the Court denied Defendant's Post-Trial Motion for Judgments of Acquittal or, Alternatively, New Trial Under Federal Rules 29(c) and 33(a). (Docket No. 113). The Court has issued this Memorandum to explain its decision.
1. Defendant's Arguments Relating to the January 3, 2003 Bank Robbery (Count IV)
Defendant was taken into custody at the Marshall Street Check Cashing Agency at 421 West Marshall Street, Norristown, with $450 in red, dye-stained money on the Saturday morning (January 4, 2003) following the bank robbery charged in Count IV. Defendant gave the person operating the check cashing agency, Kenneth Pfalzer, and a Norristown police officer who responded to Pfalzer's call to come to the agency, two different explanations for his possession of the dye-stained money. Suggs agreed to accompany the police officer to the Norristown Police Station where after a short delay, he was questioned by an FBI agent and other detectives. Some of Defendant's statements at the police station were admitted into evidence and the jury was entitled to find that they were false exculpatory statements which were incriminating.
The circumstances of this interrogation were the subject of a pretrial motion to suppress, which the Court granted in part and denied in part. United States v. Suggs, No. 2003-109, 2003 U.S. Dist. LEXIS 20181 (E.D. Pa. Oct. 30, 2003).
Defendant consented to a search of his car where police found a white T-shirt stained with red dye, money orders, and black gloves. (N.T., 11/19/03, 21-22.) An FBI examination of the T-shirt showed that the T-shirt contained both traces of tear gas and the dye commonly found in bank dye packs given to bank robbers by tellers. (N.T., 11/20/03, 28.) The bank tellers could not identify Suggs, but their description of the robber was consistent with his general build. In addition, dye-stained money was found at a nearby coin exchange machine at the BB Car Wash (N.T., 11/19/03, 118-19), which investigators were able to identify through "bait money" lists as proceeds taken during the January 3, 2003 robbery. (Id. at 127.) There was also evidence that around this time, soon after the January 3, 2003 robbery, dye-stained money was also found inside the coin exchange machines at the Elmwood Park Car Wash. (Id. at 163.) Suggs had in his possession a receipt, dated the day after the robbery, indicating that he had attempted to exchange $438.75 in quarters for U.S. currency at the Giant Supermarket in Norristown. (Id. at 16-19, 175-76)
Tracey Turner, a teller involved in the January 3, 2003 bank robbery, testified that she gave the bank robber a dye pack. (N.T., 11/18/03, 178.)
The government introduced other evidence, and although entirely circumstantial, built a large quantum of evidence in the aggregate, and the Court finds, as it stated at the time of the motion for acquittal at the close of the government's case, that the evidence was sufficient for the jury to convict the Defendant as to Count IV.
Suggs argues alternatively for a new trial on Count IV on three grounds: (1) that the Court erred in admitting photographs of Defendant's palms, which showed burn marks allegedly inflicted when the dye pack exploded; (2) that the Court's charge on "recent possession" instruction was in error and should have been accompanied by a charge that corroboration was needed; and (3) that the Court also erred by refusing to give a requested instruction that the fact that Defendant did not flee when questioned at the Norristown check cashing agency reflects innocence. The Court finds that Defendant's arguments are unsupported by Third Circuit law and therefore declined to grant a new trial as to Count IV. Any error with respect to the introduction of the palm photographs, which were relevant to this case given that there was testimony indicating that dye packs occasionally burn palms if held during discharge (N.T., 11/20/03, 50), was harmless. E.g., United States v. McCaleb, 798 F.2d 1416 (6th Cir. 1986) (not recommended for full-text publication) (admission of photograph showing man's bandaged hand harmless error). The Court's instruction on recent possession was a standard jury instruction. Rugendorf v. United States, 376 U.S. 528, 84 S. Ct. 825, 11 L. Ed. 2d 887 (1964); United States v. Miles, 468 F.2d 482 (3d Cir. 1972). See generally 1A KEVIN F. O'MALLEY ET AL., FEDERAL JURY PRACTICE AND INSTRUCTIONS — CRIMINAL § 16.10 (5th ed. 2000). There is no Third Circuit authority requiring a trial court to give an instruction on a defendant's non-flight merely because the accused fails to flee upon the arrival of investigating officers.
2. Defendant's Arguments Relating to the March 29, 2002 Bank Robbery (Count III)
As to Count III, the evidence is not as strong, but the Court concludes that it is sufficient to sustain the jury's guilty verdict. As noted above, the bank robbery charged in Count III took place on March 29, 2002 in Norristown, Pennsylvania, about nine months prior to the bank robbery charged in Count IV. Mr. Pfalzer was working at the same check cashing agency, also in Norristown, on the following Saturday morning. Although the transcript reflects that the date on which Mr. Pfalzer first encountered the Defendant was March 31, 2002, that date may be an error because that Saturday (the morning following the Friday night bank robbery) was March 30, 2002 — although the record does not reflect whether the check cashing agency was open or closed on Sunday, March 31, 2002. Whatever the specific date on which Mr. Pfalzer encountered the Defendant, it was less than 48 hours after the March 29, 2002 bank robbery.
Detective Terence Kennedy is a Lower Providence Police Department Officer who responded to the March 29, 2002 robbery. Detective Kennedy testified that the Norristown Police Department notified him on Sunday, March 31, 2002, that someone had tried to exchange dye-stained money at a check cashing agency. (N.T., 11/18/03, 120-21.) The Court notes that this testimony would not positively identify on which day this attempted transaction occurred.
Mr. Pfalzer's exact testimony included a specific identification of Defendant as being in possession of dye-stained money:
Q. At some time around noon on March 31st, 2002, did anything unusual take place in the business, the check cashing agency, at that time?
A. Yes.
Q. Could you explain to the jury what that was.
A. What took place is, that day I was very busy. There was a gentleman that came up that had — that I saw that had dye-stained money. And the — the window at which I was working at there was cameras, I had three cameras located — the cameras are direct — placed directly in front of the window, so it's just shot right down directly on the person who's standing in front of me.
Mr. Suggs, the gentleman over to the left right there, approached me, asked for two money orders in the sum of $300 each. I saw the red dye money. I said, "No."
He turned away, he acted very nervous, and walked away.
Q. All right. Let me ask you about this: You said the person came up to your window?
A. Yes.
Q. All right.
A. Stood to the left of my window.
Q. All right. And generally how would you describe this person?
A. He was very nervous.
Q. All right.
A. He was a black fellow.
Q. And how far was he from you on that particular day when you had — when you dealt with him?
A. About three feet. There's a space between us. Between the counter and the glass, on the other — other side of the glass.
Q. All right. Now, do you see that person that came up to [your window] on that day here in this courtroom?
A. Yes, sir.
Q. All right. Can you point him out to the members of the jury.
A. That man right over there (indicating).
MR. ZALESKI: Let the record reflect the witness has identified James Suggs.
THE COURT: Okay.
(N.T., 11/19/03, 61-63).
Defendant argues most vigorously that there is no connection of the dye-stained money which Defendant tried to exchange on the Saturday morning with the money taken the prior evening. However, the Court can and does assume that the jury considered all the evidence as well as its common sense to conclude that the only source of dye-stained money is from money taken during a bank robbery. Dye-stained money is commonly known to be hallmark of bank robbery proceeds. E.g., United States v. Edwards, 242 F.3d 928, 935 (10th Cir. 2001) ("Dye-packs are not available to the public, and are primarily used to mark money stolen from banks.") Diane Haney, the teller involved in the March 29, 2002 robbery, testified that she gave the bank robber a dye pack (N.T., 11/18/03, 75), which another bank teller watched explode soon after the robber left the bank. (Id. at 93-94.)
The Government called Mr. Michael Eppel, a representative of 3SI Security Systems, which prepares the special packs of currency that bank tellers are to give bank robbers during a robbery. Mr. Eppel also explained how "dye packs" work. (N.T., 11/20/03, 37-51.)
The Defendant appeared at the check cashing agency on the following morning with dye-stained money. Because of additional evidence, reviewed below, the Court need not decide whether this evidence alone is sufficient, even without any corroboration that the money in Defendant's possession was specifically the money that was taken in the bank robbery.
When the Defendant's conduct on January 4, 2003 (the morning following the January 3, 2003 bank robbery charged in Count IV) is considered, the evidence as to Count III is strengthened considerably. As noted above, the Defendant was properly convicted on Count IV where the evidence showed, inter alia, that nine months later, the day following a bank robbery, Defendant went to the same check cashing agency to conduct a similar transaction with Mr. Pfalzer. The jury was entitled to conclude that the Defendant, perhaps out of habit as well as stupidity, took dye-stained money on a morning shortly following both robberies to the same check cashing agency, and the jury was entitled to consider the evidence which had been introduced as part of the government's evidence in proving Count IV as tending to prove that the Defendant used the same conduct on the day following the March 29, 2002 robbery, charged in Count III.
The Court also notes that stipulated testimony demonstrated that on March 31 and April 1, 2002, employees discovered money stained with red dye when emptying the coin change machines at the Elmwood Park Car Wash (N.T., 11/19/03, 160-63), one of the car washes where dye-stained money was found after the January 3, 2003 bank robbery. The common sense inferences from these bizarre events allow a jury to infer guilt.
Defendant argues that the fact that these two robberies are nine months apart destroys any argument about probative value; however, the Court feels the facts in this case are unique facts that the jury could take into consideration, and which constitute sufficient circumstantial evidence to convict.
This Court finds that the evidence is sufficient to convict the Defendant on Count III. Despite Defendant's insistence that the prosecution could have, with more investigatory attention to the details, introduced evidence to show that the money which Suggs possessed on March 30 or 31, 2002, according to Mr. Pfalzer's testimony, came from the bank robbery on March 29, 2002, the Court does not find this to be a realistic argument. The Defendant approached Mr. Pfalzer and then left immediately. There is no evidence as to what happened to the money that Suggs had in his possession. However, the overall circumstances, including Suggs' behavior after the January 3, 2003 robbery, is so remarkably identical to what happened after the March 29, 2002 robbery, that the jury was entitled to conclude that Suggs was guilty as accused in Count III. See, e.g., United States v. Persinger, 587 F. Supp. 899 (E.D. Pa. 1984) (denying a defendant's Rule 29 motion where "overwhelming circumstantial evidence," such as defendant's attempt to pass off stolen traveler's checks two days after a bank robbery, supported conviction).
As held in a similar case:
We are . . . unimpressed with [the defendant's] insistence that . . . the bills that were seized were erroneously admitted without proof that they were the currency taken from the bank. Where there is other evidence of the guilt of the accused and the crime is of such a nature that the acquisition of money may be regarded as a natural or ordinary result of its perpetration, evidence is admissible of the sudden acquisition of money by the defendant at or subsequent to the time the offense was committed, although the source of the money is not definitely traced or identified by the prosecution.United States v. Manning, 440 F.2d 1105, 1110 (5th Cir. 1971) (quotation omitted). Unlike United States v. Bamberger, 456 F.2d 1119 (3d Cir. 1972), where the Third Circuit reversed a conviction where the government failed to prove the defendant's actual or constructive possession of the bait money, in this case Defendant's possession of stolen bank proceeds has been proven through Mr. Pfalzer's testimony relating to the aborted transaction in late March 2002, that positively identified Defendant as the possessor of the stained money. It is possible that the defendant could have received the money from the robber, and it is possible that the defendant could have found the money on the street, but "beyond a reasonable doubt" is not beyond such possibilities.
The Defendant also argues that the bank tellers who were the victims of the March 29, 2002 robbery provided seriously varying identifications of the robber that did not fit Suggs. The Court is unwilling to grant a judgment of acquittal on this fact alone because the tellers' opportunity to observe the bank robber was fleeting, they were under enormous emotional strain, being faced with a menacing bank robber in front of them, and in any event, neither of the tellers testified that the Defendant was not the bank robber. The Court has found that the other circumstantial evidence is sufficient.
Defendant also argues alternatively for a new trial on Count III because the Court's instruction on "recent possession of stolen property" was erroneous and the Court erred in refusing to give a requested instruction on cross-racial identification. The Court rejects both of these arguments. As mentioned above, the Court's instruction on recent possession was a standard jury instruction. Rugendorf, supra; Miles, supra. There is no Third Circuit authority requiring a trial court to give an instruction on cross-racial identification merely because the defendant and the victims are of a different race.
Lastly, the Defendant asserts that a new trial is required on Counts III and IV because of trial errors applicable to both counts. Defendant's argument that the refusal to give an instruction of "weaker or less satisfactory evidence" requires a new trial is without any legal foundation.
Concerning the Court's refusal to grant a mistrial when a FBI agent stated that his job was to "identify the guilty party," the Court immediately struck the testimony and instructed the jury that the comment should be disregarded. (N.T., 11/20/03, 73-74.) The Court finds that any prejudice was fleeting but removed with that instruction.
Lastly, the Court rejects the Defendant's argument that the Court erred in allowing Ms. Hughes, a former friend of Defendant, to testify in support of the allegations of Count I as to which the Defendant was found not guilty. The Court carefully instructed the jury that Ms. Hughes' testimony — which incriminated Defendant on Counts I and II, and which obviously was not accepted by the jury — was admitted only for purposes of Counts I and II, and should not be considered as to Counts III and IV. (N.T., 11/21/03, 23, 25-26.)