BAYLSON, District Judge:
A jury convicted the three Appellants in this appeal, Trevor Ransfer, Eric Hanna, and Kendrick Lowe, of sixteen counts of Hobbs Act robbery, conspiracy, and use and carrying of firearms during the commission of a violent crime. They appeal from their convictions and sentences.
Appellants raise three principal issues on appeal. First, Appellants challenge the admission of evidence resulting from the installation and use of a GPS tracking device without a warrant to determine the location of a Ford Expedition that was used in the commission of several robberies. Defendants contend this was an unconstitutional search in light of the Supreme Court's holding in United States v. Jones, ___ U.S. ___, 132 S.Ct. 945, 949, 181 L.Ed.2d 911 (2012), that the installation and use of a GPS tracking device is a search under the Fourth Amendment.
Second, Appellants challenge the admission of testimony by Sergeant Villaverde as hearsay, and the denial of their motion to suppress their post-arrest statements to police, contending the confessions were involuntary and coerced.
Third, Appellant Lowe argues there was insufficient evidence to convict him on all charges, and contends his expert witness was improperly excluded.
We hold that the good faith reliance exception to the exclusionary rule under Davis v. United States, ___ U.S. ___, 131 S.Ct. 2419, 2423-24, 180 L.Ed.2d 285 (2011) applies to this case, because the officers' conduct comported with clear, binding precedent that pre-dated the Jones opinion. Accordingly, we affirm the
Six defendants were indicted on sixteen counts of Hobbs Act robbery, conspiracy, and use and carrying of firearms during the commission of a violent crime. DE 3. Between April 2011 and June 2011 Appellants Kendrick Lowe, Trevor Ransfer, Eric Hanna and co-conspirators Robert Davis,
An informant led investigators to several of the robbery suspects. DE 99 at 10-11. The investigation established the use of a vehicle in the robberies on which police attached a GPS tracking device. DE 278 at 579-80; DE 99 at 13-14. Several defendants were arrested shortly after one of the robberies occurred and physical evidence of the robberies was found on them and in the vehicles they were driving. DE 276 at 283-84.
Appellants Ransfer, Hanna, and Lowe moved to suppress their post-arrest statements to police, arguing they were involuntary and coerced. DE 58, 59, 61. In brief, Ransfer and Hanna admitted their participation in all of the robberies charged, but Lowe only admitted his presence at the Farm Store, CVS Hialeah, and Wendy's at the time of the robberies. DE 66, 67. Magistrate Judge Edwin Torres held a three-day evidentiary hearing to consider the voluntariness of the Defendants' post-arrest statements to police. DE 99, 100, 110.
The Magistrate Judge found the statements were given voluntarily and did not find any credible evidence Defendants were coerced. DE 120 at 29.
Ransfer and Hanna also moved to suppress any evidence obtained as a result of the GPS tracker used to locate the Ford Expedition used in some of the robberies. DE 184. At the suppression hearing, Sergeant Villaverde testified that police installed a GPS tracking device without a warrant on the Expedition on May 26, 2011. DE 99 at 13-14. On May 27, 2011, the police recorded a controlled call which an informant, Khambrel Bynum, made to Davis, and recorded Davis saying that the crew would be committing another robbery as soon as they stole another getaway vehicle. DE 99 at 12-13. On June 1, 2011, police received notice of another robbery matching the crew's modus operandi, and activated the GPS tracking device to locate the Expedition. DE 99 at 14-15. Police determined the vehicle's location, and officers were sent to "the area [] where the Expedition was parked." DE 99 at 15.
In his Report and Recommendation, the Magistrate Judge found neither Defendant had a possessory interest in the Expedition or a reasonable expectation of privacy, because they were not in possession of the vehicle at the time the GPS was installed or used to locate the car. DE 203 at 11. Accordingly, neither Defendant had standing to challenge the search. DE 203 at 11. The District Court adopted the Report and Recommendation over Defendants' objections. DE 217.
At trial, Sergeant Villaverde testified that when Sergeant Echazabal, Detective Goble and Detective Thomas arrived at the location the GPS tracker identified, the Expedition was moving, followed by a white Toyota Solara that had been seen on surveillance video of some of the robberies. DE 364 at 84-85. Detective Goble testified at trial that police followed the vehicles into a gas station, and observed Hanna exit the Expedition, hide behind a tire, and throw a bundle of cash under the car. DE 364 at 164-65. Sergeant Echazabal testified at trial he observed Ransfer in the driver's seat of the Expedition, and Ransfer exited the car when ordered. DE 364 at 179-81. Sergeant Echazabal patted down Ransfer and recovered from his pants pocket cash and a debit card bearing the name of the Wendy's manager who was robbed earlier that evening. DE 365 at 181-82. Davis's sister — not a defendant — was driving the Solara, and Middleton was in the passenger seat of the Solara. DE 277 at 331. Officers found additional evidence of the robbery in the Solara, including clothing used in the robbery, additional cell phones, and a driver's license and other wallet items belonging to the same Wendy's manager. DE 276 at 283-84. Ransfer, Hanna, and Middleton were arrested, the two vehicles were impounded and police obtained search warrants for both vehicles. DE 364 at 101, 152.
Sergeant Villaverde testified at trial that police then went to Davis's house, where they observed a blue minivan which had been seen at the Wendy's robbery — police later learned that this minivan had been stolen. DE 364 at 86-87. Detective Armenteros testified at trial that when he arrived at the Davis residence, he saw Davis and Lowe on the front porch of Davis's house and then observed the two men run inside the house. DE 364 at 192. Detective Armenteros testified that he and Detective Ramirez kicked down the front door. DE 364 at 192-93. When they entered the house, they heard a back door slam shut. DE 364 at 192-93. They then
Defendants were taken to the police station between 12 a.m. and 1 a.m. on June 2 and held for approximately twenty-four hours as police from the relevant jurisdictions questioned them about the robberies. DE 364 at 91. There was significant testimony both at trial and at the suppression hearing that Defendants were regularly offered food and restroom breaks, and in their recorded statements, Defendants said they were treated well. DE 364 at 92 (trial); DE 99 at 85, 142 (suppressing hearing).
Defendants Ransfer, Hanna and Lowe were convicted on all counts after a three-day jury trial. DE 231. Defendants Ransfer and Hanna appeal their conviction based on the denial of their motion to suppress evidence flowing from the warrantless GPS search. Defendant Lowe challenges the sufficiency of the evidence to convict him on all counts charged. All three Defendants challenge the sufficiency of the evidence on the interstate commerce issue, admission of Sergeant Villaverde's testimony as hearsay, and the admission of their post-arrest statements as involuntary. Lowe also contends the District Court erred in excluding his medical expert as irrelevant and in limiting his closing argument to twenty minutes. Finally, Hanna challenges the testimony of the Metro PCS records custodian as expressing an expert opinion.
"Because rulings on motions to suppress involve mixed questions of fact and law, we review the district court's
Evidentiary rulings are reviewed for abuse of discretion. United States v. Range, 94 F.3d 614, 620 (11th Cir.1996); United States v. Russell, 703 F.2d 1243, 1249 (11th Cir.1983) ("Determinations of admissibility of evidence rest largely within the discretion of the trial judge and will not be disturbed on appeal absent a clear showing of an abuse of discretion."). We also review the amount of time allotted for closing argument for abuse of discretion. United States v. Carter, 760 F.2d 1568, 1581 (11th Cir.1985).
Sufficiency of the evidence is reviewed de novo, considering the evidence in the light most favorable to the government, to determine whether a reasonable jury could find the defendant guilty beyond a reasonable doubt. United States v. Pedro, 999 F.2d 497, 500 (11th Cir.1993).
In United States v. Jones, the Supreme Court held that installing a GPS tracking device on a vehicle and tracking the vehicle's movement for 28 days was a search under the Fourth Amendment. 132 S.Ct. at 949 ("We hold that the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a `search.'"). In Jones the GPS data was admitted into evidence to show the defendant was at the alleged co-conspirator's stash house. Id. at 948-49. The Court distinguished its earlier precedent in United States v. Knotts, 460 U.S. 276, 282, 103 S.Ct. 1081, 1086, 75 L.Ed.2d 55 (1983), holding that tracking a radio signal from a beeper placed in a chemical container with the owner's consent before the defendant stole the container was not an unconstitutional search because the defendant had no reasonable expectation of privacy in his movements on public highways. Id. ("Nothing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case.").
In Jones the Supreme Court found Knotts only addressed the question of reasonable expectation of privacy and did not address the question of trespass, because the tracking device was initially installed on a chemical container that the defendant placed in his car with permission of the company that owned the container. Jones, 132 S.Ct. at 952 ("Knotts would be relevant, perhaps, if the Government were making the argument that what would otherwise be an unconstitutional search is not such where it produces only public information."). The Court explained that the GPS tracking was a search because "[t]he Government physically occupied private property for the purpose of obtaining information." Id. at 949.
In Davis v. United States, which was on appeal from this court, the Supreme Court held "searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule." ___ U.S. ___, 131 S.Ct. 2419, 2423-24, 180 L.Ed.2d 285 (2011). In Davis the police searched the passenger compartment of a defendant's car after he had been handcuffed and all the occupants had been secured. United States v. Davis,
Prior to Jones, this court held that installation of a beeper on a vehicle parked in a public place and tracking of the vehicle's movements on public roads did not violate the Fourth Amendment when officers had reasonable suspicion to initiate surveillance of the vehicle.
The court in Michael held that "installation of the beeper was permissible even if we assume the installation was a search," because "the minimal intrusion involved in the attachment of a beeper to Michael's van, parked in a public place, was sufficiently justified so as to satisfy any of Michael's Fourth Amendment expectation of privacy concerns." Id. at 256.
The Fifth Circuit recently held police could rely on Michael "[d]espite any possible technological differences between a 1981 `beeper' and the GPS device used in this case, [because] the functionality is sufficiently similar that the agents' reliance on Michael to install a GPS device on the truck, in light of the reasonable suspicion of drug trafficking, was objectively reasonable." United States v. Andres, 703 F.3d 828, 835 (5th Cir.2013) cert. denied, ___ U.S. ___, 133 S.Ct. 2814, 186 L.Ed.2d 873 (2013). We agree with the Fifth Circuit that Michael was clear, binding precedent that holds the electronic tracking of a vehicle without a warrant does not violate the Fourth Amendment, particularly where officers
In this case, the police had a reliable informant, Khambrel Bynum, who provided substantial details on the previous robberies and the Defendants' use of the Expedition in those robberies. DE 99 at 8-9; DE 364 at 77-78. Police recorded a conversation between Bynum and Davis about a planned upcoming robbery. DE 99 at 12-13. Police also observed the Expedition on surveillance footage from the scene of other robberies. DE 99 at 91. The GPS tracker was installed when the Expedition was in a public place and was used to locate the Expedition when it was in a public parking lot. DE 99 at 15.
The First Circuit recently applied Davis to find that a warrantless GPS search was admissible in United States v. Sparks, 711 F.3d 58, 62 (1st Cir.2013). As in this case, the officers in Sparks attached a GPS tracking device to a car used by a suspect in a number of robberies. Id. at 60. Using the GPS data, the officers tracked the car for eleven days, eventually to the scene of a crime. Id. The First Circuit held the Davis exception applied because "[w]hen the police comply with authoritative precedent, only to see the law evolve after the fact, there is nothing to deter; the police cannot modify their conduct to accord with cases not yet decided." Id. at 63 (citing Davis, 131 S.Ct. at 2428-29).
The court in Sparks found that the Supreme Court precedent in Knotts
Id. at 67 (quoting United States v. Garcia, 474 F.3d 994, 996-97 (7th Cir.2007)). First Circuit precedent in United States v. Moore held the trespass issue to be "so insignificant as to be essentially irrelevant for Fourth Amendment purposes." Id. at 65 (citing United States v. Moore, 562 F.2d 106, 111 (1st Cir.1977) ("[W]e do not find it critical that the beeper placed in the package of chemicals was inserted before title to the chemicals passed to defendants, while the beepers affixed directly to the vehicles were attached without the owners' permission and hence involved a trespass.")). Sparks held that because the officers reasonably relied on clear binding precedent in Knotts and Moore, evidence resulting from the warrantless use of the GPS tracking device was admissible under the good faith reliance exception. Sparks, 711 F.3d at 67 ("In sum: at the time of the GPS surveillance in this case, settled, binding precedent in the form of Knotts and Moore authorized the agents' conduct.").
Similarly, the Ninth Circuit held that evidence resulting from the GPS tracking of a defendant's vehicle that occurred prior to Jones was admissible under the Davis exception. United States v. Pineda-Moreno, 688 F.3d 1087, 1090-91 (9th Cir.2012)
However, the Third Circuit recently found no good faith reliance exception for a warrantless GPS search because there was no clear, binding precedent in the Third Circuit, United States v. Katzin, 732 F.3d 187, 206-08(3d Cir.2013) (noting the Fifth, Seventh, Eighth, and Ninth circuits held the warrantless use of a GPS tracking device was not unconstitutional, but the D.C. Circuit did find it violated the Fourth Amendment).
As discussed above, in the Eleventh Circuit, we do have clear precedent, Michael, 645 F.2d at 258, holding it did not violate the Fourth Amendment to install an electronic tracking device on the outside of a vehicle without a warrant, which is the same kind of intrusion at issue in this case. Moreover, the technological distinctions the Third Circuit found relevant in Katzin do not apply to the facts of this case: "Unlike GPS trackers, beepers require that the police expend resources — time and manpower — to physically follow a target vehicle." Katzin, 732 F.3d at 195-96. That is exactly what occurred in this case. As noted, the GPS tracker was not used to trace the movements of Defendants. The tracking device was not used until after an armed robbery was committed and the vehicle was used to flee the scene. Then the GPS tracking device was used for a very brief period of time after the robbery to pinpoint the location of the vehicle and to dispatch police to arrest Defendants several minutes after the Wendy's armed robbery.
Michael articulated clear, binding precedent that installation of a device permitting electronic surveillance of a vehicle does not violate the Fourth Amendment
Appellants contend that Sergeant Villaverde's testimony should have been excluded as hearsay. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Fed.R.Evid. 801(c). Statements can be hearsay "even though they do not explicitly paraphrase the words of others, [because] the only conceivable explanation for how [the witness] discovered this information is through listening to the statements of others." United States v. Baker, 432 F.3d 1189, 1206 (11th Cir.2005) (citing United States v. Shiver, 414 F.2d 461, 463 (5th Cir.1969) (finding the contents of a police report were hearsay because the officers did not have first-hand knowledge of the details in the report)). "Statements by out of court witnesses to law enforcement officials may be admitted as non-hearsay if they are relevant to explain the course of the officials' subsequent investigative actions, and the probative value of the evidence's nonhearsay purpose is not substantially outweighed by the danger of unfair prejudice caused by the impermissible hearsay use of the statement." Id. at 1208 n. 17; United States v. Jiminez, 564 F.3d 1280, 1287 (11th Cir.2009) (quoting Baker as "the law [that] this Circuit has long recognized").
In Jiminez,
564 F.3d at 1287 (affirming the conviction). The Eleventh Circuit found this statement was not hearsay because it was relevant to explain why the detective re-interviewed the witness, so the statement "was admitted only to show what was said, not that it was true." Id. This explanation was relevant because the defense elicited testimony that suggested the re-interviewing of the witness was improper, so this statement was admitted to rehabilitate the detective's credibility. Id. at 1287 ("It is the existence of the statement, not its veracity, that provides the explanation."). But in Baker a similar statement that an officer "`received information' from an anonymous caller that indicated [defendants] ... were involved in the shooting" was not relevant to explain the course of the investigation because
Baker, 432 F.3d at 1208-9.
In this case Appellants challenge the following testimony by Sergeant Villaverde:
DE 364 at 73-74.
DE 364 at 72.
DE 364 at 80. Sergeant Villaverde further testified: "We were able to identify a white Expedition that was being used in these crimes as well as a particular car that was also being used in these crimes. They would steal minivans and use minivans during the commission of these robberies." DE 364 at 7-78.
Appellants contend these statements should have been excluded as hearsay because, as in Baker, the information was learned from a second person's out of court statements.
Sergeant Villaverde's testimony described the course of a complex investigation. Unlike the investigation in Baker, where the sergeant merely responded to the scene of a crime and interviewed witnesses, Sergeant Villaverde supervised a months-long endeavor to identify and locate multiple perpetrators who engaged in a series of armed robberies and car thefts. Sergeant Villaverde's testimony about the pattern of the crimes explains why the police believed the Wendy's was robbed by the same perpetrators as the Doral Ale House, Farm Store, and CVS. The statements regarding the identities of the Defendants and the description of the vehicles explain why the police installed a GPS device on Middleton's car and why the police went to Davis's house after they arrested Ransfer, Hanna, and Middleton. But unlike Jiminez, the explanation was not offered to rehabilitate the witness after impeachment. Instead, Sergeant Villaverde was the Government's first witness, who provided a summary of the investigation and also "shed [] additional light on why [Sergeant Villaverde] conducted his investigation in the manner that he did," Baker, 432 F.3d at 1208.
We need not decide whether it was error for the District Court to admit all of Sergeant Villaverde's testimony. Even if it was in error to admit the statements, as Appellants contend, it was not a reversible error because the evidence about which Sergeant Villaverde testified was otherwise admissible on the record. "`To require a new trial ... [a] significant possibility must exist that, considering the other evidence presented by both the prosecution and the defense, the ... statement had a substantial impact upon the verdict of the jury.'" United States v. Arbolaez, 450 F.3d 1283, 1290 (11th Cir. 2006) (quoting United States v. Rodriguez, 524 F.2d 485, 487 (5th Cir.1975)). In Rodriguez, the court found admission of an officer's testimony reciting an informant's statements was not a reversible error because other evidence and testimony provided the same content as the inadmissible hearsay. Rodriguez, 524 F.2d at 487 ("Thus, although the admission of Agent Lawrence's testimony giving the specifics of the informant's tip constituted error, we find little possibility, in light of the other evidence, that the statement had a `substantial impact' on the verdict of the jury."); see also Arbolaez, 450 F.3d at 1291 ("[W]e find it unlikely that the admission of Perez's statements had a substantial influence on the jury's verdict as to either count upon which he was convicted. Accordingly, although the court erred in admitting the statements, the error was harmless and so does not merit reversal.").
The following chart illustrates that for every objection Appellants made to Sergeant
Sergeant Villaverde Statement Other evidence on the record
"We had a group of robberies that were occurring, Police Be On the Look Out (BOLO) description of
that individuals were wearing gray sweatshirts or the robberies and photos from video surveillance,
blue Police Be On the Look Out (BOLO) sweatshirts Gov't Ex. 69A; Gov't Ex. 69B.
that had a certain name, Aero, red sweatpants,
description of the robberies and The height,
weight, physical description matched. There photos
from video surveillance, was [sic] locations that
were being targeted, that also matched other robberies
that were occurring, and we ended up getting
some more intelligence on that." DE 364 at
72.
"We were able to identify certain individuals in the Hialeah CVS surveillance video. GX59. Still of
crew robbery or the robbery crew ... We were Lowe from video. GX60A. Ransfer's recorded
able to identify Robert Davis, Montavis Middleton statement to police. DE 278 at 567-68. Hanna's
and Fabian Warren on the — beginning of intelligence. recorded statement to police. DE 279 at 734-35.
We were then able to identify Eric Hanna.
Law enforcement was then aware of Mr. Ransfer
and we were able to identify a picture of Mr — Mr.
Lowe. We were able to identify a picture of him via
a Facebook account as well as I had a surveillance
still photo of him in May of 2011 at the CVS in
Hialeah, just before the robbery occurred, which
matched the Facebook photo, and the intelligence
that we had received was that they [the robbers]
would go in and scout the location." DE 364 at
73-74.
"The intelligence that we had received [from the Recorded statements by Ransfer and Hanna to
informant], they [the robbers] would go in and police. DE 278 at 569; DE 279 at 716.
scout, just walk in and check out the place and
then the store would be hit." DE 364 at 74.
"We were able to identify a white Expedition that Farm Store surveillance video showing Expedition,
was being used in these crimes as well as a particular Gov't Ex. 58. Recorded statements by Ransfer
car that was also being used in these crimes. and Hanna to police about the blue minivan. DE
They [the robbers] would steal minivans and use 278 at 567; 279 at 731. Ransfer's recorded statement
minivans during the commission of these robberies to police identifying the Expedition and
... We also identified a vehicle at Mr. Davis's Solara. DE 278 at 568; DE 278 at 589-3 at 7.
house that belonged to his sister, Ronisha Davis, a Recorded statements by Lowe and Hanna identifying
white Toyota car, Solara, two door." DE 364 at the Expedition used in the robberies. DE 279
77-78. at 714; DE 278 at 608, 612-13.
"We'd targeted an area that they [the robbers] Sergeant Villaverde's first-hand knowledge about
were hitting as well as we had a source that was how the informant cooperated with police, and not
cooperating with us. [The informant] was getting the content of the information the informant pro
information ... [The informant] was getting information vided to police,
via telephone calls from one of the defendants,
Mr. Davis, and we would get information
from [the informant]." DE 364 at 79-80.
"We had got [sic] information [from the informant] Text messages between Lowe and Davis about
that they [the robbers] had actually procured a needing to get another getaway car read on the
vehicle ... They [the robbers] had gotten a vehicle record. DE 279 at 795 Ransfer's recorded statement
that they were going to do another robbery to police about a stolen van. DE 278 at 566-67.
with. However, during that [recorded] conversation
[between the informant and Davis] the victim — the
subject [Davis] advised that the victim had actually
stole the car back from the location that the car
was being held at, that they [the robbers] were going to use it to do a robbery." DE 364 at 80 "I learned of a blue minivan that was seen leaving Ransfer's recorded statement to police that the the Wendy's robbery ... During the course of Defendants stole a blue minivan DE 278 at 567-66; learning that information, it was established that DE 278 at 70-71. there was also a blue minivan Dodge that was stolen from down south at a location that was significant to myself." DE 364 at 82.
In the recorded statements to the police that were played at trial, Ransfer and Hanna identified themselves, Davis, Middleton, Warren, and Lowe as individuals involved in the robberies. DE 278 at 567-68; DE 278 at 706-DE 279 at 714. Their statements also explained how the robbery crew first scouted out a location before robbing it. DE 279 at 716; DE 278 at 705.
Defendant Kendrick Lowe was convicted of one count of conspiracy to commit Hobbs Act robbery under 18 U.S.C. § 1951, four counts of aiding and abetting Hobbs Act robbery, and four counts of possession of a firearm during the commission of a violent crime under 18 U.S.C. § 924. The Government's theory at trial was that Lowe was a lookout in the Farm Store robbery on May 11 at 10:40 p.m., the May 15 robberies of a CVS in Hialeah at 3:00 a.m. and a CVS in Kendall at 3:30 a.m.,
Lowe challenges the sufficiency of the evidence on all counts. We must view the facts in the light most favorable to the government, and must uphold the conviction if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).
To convict on a Hobbs Act robbery, the government must prove a robbery and an effect on interstate commerce. 18 U.S.C. § 1951(a); United States v. Dean, 517 F.3d 1224, 1227-28 (11th Cir. 2008). To convict on a Hobbs Act conspiracy, the government must show that (1) two or more people agreed to commit a Hobbs Act robbery; (2) that the defendant knew of the conspiratorial goal; and (3) that the defendant voluntarily participated in furthering that goal. United States v. To, 144 F.3d 737, 748 (11th Cir.1998). "To prove aiding and abetting a § 924(c) offense, the government must show that the substantive offense of carrying or using a firearm in relation to a crime of violence was committed, that the defendant associated himself with the criminal venture, and that he committed some act that furthered the crime." United States v. Williams, 334 F.3d 1228, 1232 (11th Cir.2003).
It is undisputed that the robberies occurred and that firearms were used to commit the crimes. The video surveillance footage shown to the jury showed firearms were used in the robberies. Robbery victims also testified that the robbers used guns: "one of them grabbed me and pointed the gun at her temple to her head and the other one — and the other one grabbed me by the neck and pointed the gun at my neck." DE 364 at 134; DE 277 at 382; DE 277 at 289. The question is whether the Government introduced sufficient evidence to prove Lowe was involved in the robberies.
In his statement to police that was read to the jury at trial, Lowe told police he was at the Farm Store at the time of the robbery. Lowe told police that Davis drove him to the Farm Store in the Ford Expedition. DE 278 at 614. In the transcript of his recorded statement to police that was provided to the jury, Lowe said, "I was in the truck. I wasn't known whatever they was on I wasn't (inaudible)." Gov't Ex. 114C at 22. Also, in his statement to police that was read to the jury at trial, Lowe said when he was ordering chips from a woman at the Farm Store counter, he saw "two dudes came up from the back with ski masks and whatever." DE 278 at 613. He continued, "[w]ere there two guys.... They had to be males because when she turned around and gave me the chips, that's when saying whatever they was saying. We scurried off, like we hit it. That was that." DE 278 at 614-15. In his recorded statement read at trial, Lowe told police he didn't call 911 after witnessing the robbery because his "phone was completely dead. I ain't call no 911." DE 2678 at 616.
The woman at the Farm Store counter, Lucia Quintero, testified at trial "[a] white car approached and some people inside asked for two — for some packages of Cheetos." DE 364 at 132-33. Quintero testified two men were in a Ford Expedition, one was driving and one was laying down in the passenger seat, "the one who was lying down, his skin was the color of my skin, but that is all I could see." DE 364 at 133. Quintero testified her co-worker was serving the men in the truck when "[t]hrough the rear of the store two
Detective Arana testified that after Lowe initially denied being near the Wendy's on the night of the arrest, he knocked on the door of the interview room and asked to speak with the detectives again. DE 277 at 479. Lowe then told Arana that "he remember[ed] being near the Wendy's that night." DE 277 at 479. Arana testified that Lowe said
DE 277 at 479.
In addition, the jury heard text messages exchanged between Lowe and Davis around the time of the Wendy's robbery about obtaining a getaway vehicle. DE 279 at 795. Lowe texted to Davis: "We got need a car to be behind us, you know, not with that splat shit unless we get tailed. That is kind of far." DE 279 at 795.
Lowe told police in a recorded statement played for the jury at trial that he was at the CVS Hialeah on the night that it was robbed. DE 278 at 543. Lowe said that he went into the store to buy Tylenol, but a sales clerk said they did not sell individual packages of the medicine, so he left without purchasing anything. DE 278 at 547-49. Yadira Lopez, an employee at the Hialeah CVS who witnessed the robbery,
The Government introduced into evidence a summary of cell phone records showing the date and time of cell phone calls mapped to the location of the cell phone towers. DE 279 at 810-11; Gov't Ex.'s 99, 101; see also, supra note 18. Cell phone records show that on May 17 Lowe and Davis exchanged numerous cell phone calls that pinged the Metro PCS cell phone towers near the Hialeah CVS between 2:30 a.m. and 3:00 a.m. DE 279 at 818-19.
The CVS in Kendall was robbed at around 3:30 a.m. on May 17, approximately half an hour after the Hialeah CVS was robbed that morning. As noted above, Lowe told the police in a recorded statement played at trial that he was at the Hialeah CVS at the time of the robbery, and video surveillance of the Hialeah CVS showed him in the store moments before the robbery occurred. DE 278 at 543.
Based on the evidence introduced at trial, the jury could conclude that Lowe gave inconsistent statements to police about his conduct on the nights of the robberies. Detective Arana testified at trial that Lowe initially told police that he was not at
The text messages exchanged between Lowe and Davis are evidence of an agreement between at least Lowe and Davis. They also show that the jury could find Lowe knew of the goal to rob and voluntarily participated in at least some of the robberies. The video surveillance and testimony about the use of guns in all of the robberies suggests that Lowe associated himself with crimes of violence. Lowe's own statements to the police placed him at the Farm Store, the CVS Hialeah, and the Wendy's, immediately prior to or during each of the robberies. DE 278 at 543; DE 278 at 611-13; DE 277 at 478-79. As discussed above, Detective Christie testified that the cell phone records showed phone calls between Lowe and Davis were placed immediately before and after each robbery, and that Lowe's phone was used at or near the robbery locations. DE 279 at 815-22.
Viewing the evidence in the light most favorable to the Government, a reasonable trier of fact could find that the testimony, video surveillance, and cell phone records support the Government's theory that Lowe furthered each robbery by acting as a scout, lookout, or to divert or distract store employees during the Farm Store, Wendy's, and Hialeah CVS armed robberies. The jury could have concluded that Lowe's statements were fictitious attempts to explain his presence at the same three
As to the Kendall CVS, cell phone tower records show Lowe placed calls near the Hialeah CVS. Then immediately after the robbery at 3 a.m., Lowe placed calls moving southward toward and eventually near the Kendall CVS. These calls support a finding that Lowe was at or near the Kendall CVS with the rest of the crew.
Lowe did not admit he was present near the Kendall CVS at any time. Although only circumstantial evidence places Lowe near the Kendall CVS, we must view the facts in the light most favorable to the Government and can only overturn a conviction if we find no reasonable trier of fact could have found guilt beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.
Three pieces of evidence tie Lowe to being at or near the Kendall CVS robbery:
(1) Lowe's statement to police he was at the Hialeah CVS;
(2) video surveillance showing Lowe at the Hialeah CVS moments before the robbery; and
(3) cell phone tower records showing Lowe's phone pinged the cell phone tower near the Kendall CVS at the time of the robbery, and made calls to and from Davis.
This follows a pattern of cell phone calls demonstrating Lowe's presence at the other three robbery locations immediately prior to or during the robberies. DE 278 at 543; DE 278 at 611-13; DE 277 at 478-79. Given the evidence supporting this pattern, and the cell phone records showing Lowe was near the Kendall CVS, a reasonable trier of fact could find beyond a reasonable doubt that Lowe "associated himself with" the Kendall CVS robbery. DE 280 at 938. But there is no evidence that Lowe was ever inside the Kendall CVS or that he did anything prior to or during the robbery of the Kendall CVS to further the crime. Accordingly, there was insufficient evidence that Lowe acted in furtherance of the Kendall CVS robbery.
In sum, viewing the evidence in the light most favorable to the government, a reasonable jury could find beyond a reasonable doubt that Lowe associated himself with and acted to further the Farm Store, Hialeah CVS, and Wendy's robberies. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Since there was no evidence of Lowe's conduct at the Kendall CVS, and evidence of his presence in the vicinity alone is insufficient to convict for aiding and abetting the CVS Kendall robbery, we will vacate the judgment against Lowe on Counts 12 and 13, pertaining to the Kendall CVS robbery, instruct the District Court to vacate the verdict on these counts, and remand on sentencing.
In addition to challenging the statements following the warrantless GPS search, Appellants contend their statements
Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986). "We consider the totality of the circumstances, including the details of the interrogation and the defendant's characteristics, when deciding whether a confession was voluntary." United States v. Bernal-Benitez, 594 F.3d 1303, 1319 (11th Cir. 2010). Factors considered include the defendant's lack of education or low intelligence, failure to appraise the defendant of his rights, the length of detention, "the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep." Waldrop v. Jones, 77 F.3d 1308, 1316 (11th Cir.1996) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)).
Each of the Appellants executed a signed waiver of their Miranda rights, acknowledging that they were informed of their Fifth Amendment rights. DE 278 at 604 (Lowe); DE 277 at 580-81 (Ransfer); DE 277 at 188-98 (Hanna). Police interviewers also went over the Miranda waiver form and Fifth Amendment rights with each Defendant. DE 66-2 at 3-4 (Ransfer); DE 65-1 at 4 (Hanna); and DE 67-2 at 2 (Lowe). Each Appellant contends the waiver and statements were not voluntary because each was held for more than twenty-four hours and subject to coercion. But the questioning did not last for twenty-four hours; the transcripts of the recorded statements show some interviews were as short as two or ten minutes, and others were as long as an hour and fifteen minutes. DE 66-7; DE 66-5. Moreover, as the Magistrate Judge correctly noted, officers may detain suspects up to forty-eight hours before a probable cause hearing, County of Riverside v. McLaughlin, 500 U.S. 44, 56-7, 111 S.Ct. 1661, 1670, 114 L.Ed.2d 49 (1991), and this court has found a defendant's statements to police were voluntary despite the defendant's five-day detention for questioning. Lawhorn v. Allen, 519 F.3d 1272, 1291 (11th Cir.2008).
After a three-day suppression hearing, the Magistrate Judge found no credible evidence that Defendants were subject to physical punishment and that they were all offered food and restroom breaks throughout the course of their detention. DE 120 at 12. The Magistrate Judge also found that despite their relative youth, all the Defendants understood their Fifth Amendment rights before agreeing to waive them. DE 120 at 26-27. Defendants do not point to any evidence on the record showing these findings were erroneous.
Appellants contend there was insufficient evidence of the effect on interstate
In United States v. Guerra, there was sufficient impact on interstate commerce where $300 in cash was stolen from a gas station that was part of national chain and the store was closed for more than two hours while police investigated the robbery. 164 F.3d 1358, 1361 (11th Cir. 1999); see United States v. Rodriguez, 218 F.3d 1243, 1244-45 (11th Cir.2000) (finding a robbery of a motel impacted interstate commerce because it hosted out-of-state customers, even though there was no evidence the hotel had to shut down or turn away customers due to the robbery). Here, the Government introduced evidence that the Farm Store, the Doral Ale House, the Wendy's, and the two CVS locations, regularly purchased goods that traveled in interstate commerce, that money was taken from each store in each robbery, and that each store had to shut down for several hours as a result the robberies. DE 277 at 383, 386-87, 420-22 (Doral Ale House); DE 277 at 362-66 (Farm Store); DE 277 at 372-74(CVS); DE 278 at 528-29 (Wendy's). Accordingly, there was sufficient evidence that a reasonable trier of fact could find the robberies impacted interstate commerce.
Lowe sought to introduce testimony by Dr. John Marracini that Lowe could not have caused the injury to Detective Armentero's head. Defendant contends this evidence was crucial because it shows that Lowe was beaten during the course of his arrest, affecting the reliability of Lowe's post-arrest statement to police.
Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable." Fed.R.Evid. 401. Relevant evidence may be excluded "if its probative value is substantially outweighed by a danger of... confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed.R.Evid. 403. We review evidentiary rulings for abuse of discretion. United States v. Russell, 703 F.2d 1243, 1249 (11th Cir.1983).
Ruling from the bench during the trial, the District Court found the evidence was not relevant because the central issue was how Lowe was struck before giving his statement, not how the officer was struck. DE 364 at 15. The Court further found that any potential relevance would be substantially outweighed by the potential for confusion and a waste of time. DE 364 at 19. We agree that this evidence does not tend to prove or disprove any fact related to Lowe's post-arrest statement to police. As the District Court said, "it doesn't make a difference how the officer was hit or not hit, or what he was hit with ... the purpose of this is the condition of the defendant and whether he was roughed up and how he was roughed up." DE 364 at 15. The District Court acted within its discretion in so ruling. Not only would this irrelevant evidence waste time, but it also had the potential to confuse the central issue, which was Lowe's condition before he gave his statements. Accordingly, the District Court did not abuse its discretion in excluding the testimony of Dr. John Marracini.
Lowe contends the District Court impermissibly restricted his attorney's closing argument to twenty minutes. "The period of time to be allotted for attorneys' closing arguments is within the sound discretion of the district court." United States v. Carter, 760 F.2d 1568, 1581 (11th Cir.1985). In United States v. Sotelo, the Fifth Circuit found it was not an abuse of discretion to limit closing arguments to ten minutes in a factually-complex, twelve-count indictment with forty witness because the appellants "made no offer of proof as to what arguments they were foreclosed from presenting at trial." 97 F.3d 782, 794 (5th Cir. 1996) ("Having reviewed the record, we find no abuse of discretion; the appellants' closing arguments adequately summarized the evidence and arguments and nothing in the record indicates what additional items would have been covered during closing had the trial allowed additional time."). Similarly, Lowe does not point to any arguments his attorney was not able to cover in the twenty minutes allotted for his closing argument. Since Lowe failed to identify any prejudice to his defense, we do not find the limitation was an abuse of discretion.
Hanna contends it was an error to allow the Metro PCS records custodian, Michael Stephen Dikovitsky, to testify as to his opinion beyond his expertise. "If a witness is not testifying as an expert," Rule 701 limits "testimony in the form of an opinion." Fed.R.Evid. 701. Here, Dikovitsky explained how cell phone towers record "pings" from each cell phone number and how he mapped the cell phone tower locations for each phone call for Exhibits 99, 100 and 101. DE 277 at 429-45.
We find the Davis good-faith exception to the exclusionary rule applies because it was reasonable for the police to rely on the clear precedent articulated in Michael — that reasonable suspicion is sufficient to support the warrantless installation of an electronic surveillance device on a vehicle. Admitting Sergeant Villaverde's testimony was not reversible error because the content of the statements was introduced elsewhere in the record. We do not find the District Court abused its discretion in excluding testimony by Dr. Marracini, limiting Lowe's closing argument to twenty minutes, or admitting Michael Stephen Dikovitsky's testimony.
There was substantial evidence showing Lowe associated himself with and acted to further the Farm Store, Hialeah CVS, and Wendy's robberies, as well as conspired with others to rob. Therefore, a reasonable trier of fact could find beyond a reasonable doubt that he was guilty of conspiracy, aiding and abetting Hobbs Act Robbery and possession of firearms in the furtherance of a crime. There was no evidence, however, that Lowe acted to further the Kendall CVS robbery.
Accordingly, the judgments and sentences of Ransfer and Hanna are affirmed. The conviction of Lowe on Counts 1, 8, 9, 10, 11, 14 and 16 is also affirmed. We vacate the judgment of conviction of Lowe on Counts 12 and 13, and remand with instructions to the District Court to enter a judgment of acquittal on these counts and to resentence Lowe.
DE120 at 29.
United States v. Smith, ___ F.3d ___, 741 F.3d 1211, 1223, No. 1211042, 2013 WL 6728097 at *9 (11th Cir. Dec. 23, 2013) ("To any reasonable officer, then, the three prongs of Michael's Fourth Amendment analysis dictated the constitutionality of the search here at issue. In short, the agents relied reasonably on what was then binding appellate precedent.").
However, any reference to the other Defendants was omitted. The record of the suppression hearing, which includes the unredacted statements submitted as exhibits to the Government's response to the motion to suppress, shows the extent to which each Defendant's statements identified the other Defendants. DE 64-67.
