NOT PRECEDENTIAL


UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

                          __________

                          No. 09-4427
                          __________


               UNITED STATES OF AMERICA

                               v.

                   MICHAEL A. POWELL,
                               Appellant

                           _________

         On Appeal from the United States District Court
                  for the District of New Jersey
                  (D.C. No.1-08-cr-00592-001)
           District Judge: Hon. Joseph H. Rodriguez
                           __________

           Submitted Under Third Circuit LAR 34.1(a)
                      September 12, 2011

    Before: SLOVITER, SCIRICA, and SMITH, Circuit Judges

                  (Filed: September 13, 2011)

                          __________

                           OPINION
                          __________
SLOVITER, Circuit Judge.

       Michael Powell was convicted by a jury of two counts of bank robbery and two

counts of carrying a firearm in connection with a crime of violence in violation of 18

U.S.C. § 2113(a) and (d) and 18 U.S.C. § 924(c), respectively. Powell asks this court to

vacate his conviction and remand for a new trial. In the alternative, he challenges the

reasonableness of his sentence. We will affirm.1

                                             I.

       On April 30, 2008, a PNC Bank in Glendora, New Jersey was robbed by a man

armed with a gun. On July 2, 2008, two men armed with guns robbed the same bank.

Although the employees were not able to identify the perpetrators because the men wore

disguises, they believed that one of the men was involved in both robberies based on his

appearance, voice, demeanor, and actions.

       Law enforcement agents, including Federal Bureau of Investigation (“FBI”)

Special Agent Mark Gillen, conducted an investigation that led to the arrest of Powell as

the suspect in the two robberies. The evidence collected included, inter alia,

incriminating statements made by Powell to his friend Everett McKinney (who was

cooperating with the FBI), video surveillance and cell phone records that placed Powell

near the PNC Bank on April 30, a text message sent from Powell’s phone on July 1

stating he was “trying to get some money,” supp. app. at 200, the fact that Powell

borrowed a white, compact Chevrolet from his ex-girlfriend Kristina Fleming on July 2


       1
         The District Court had jurisdiction under 18 U.S.C. § 3231, and we have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
                                             2
(the same type of car a witness who lived near the bank saw the robbers drive away in),

and Powell’s unexplained wealth. The FBI was also aware that Powell previously pled

guilty to three counts of armed bank robbery for which he was then serving a term of

supervised release, and that his height, build, and skin-tone appeared to be consistent with

those characteristics of the robber.

       On August 13, 2008, FBI agents executed a search and arrest warrant at Powell’s

apartment. While being handcuffed, one of the agents asked Powell if he had any

weapons in the apartment to which he responded “yes, there is a loaded gun in the

hallway closet.” Presentence Investigation Report (“PSR”) ¶ 33. In addition to the

loaded firearm, agents recovered two diamond lined “Joe Rodeo” watches among other

jewelry, a pair of black pants with a white label on the rear pocket, and a pair of gold-

rimmed sunglasses. The gun, pants, and sunglasses resembled those seen in the video

surveillance footage of the robberies.

       In 2009, a grand jury returned a four-count superseding indictment charging

Powell with two counts of bank robbery under 18 U.S.C. § 2113(a) and (d) and two

counts of carrying a firearm in connection with a crime of violence under 18 U.S.C. §

924(c). After a five-day trial, the jury returned a verdict of guilty on all counts. Powell

subsequently appeared for sentencing. After hearing from the parties, the District Court

imposed concurrent sentences of 78 months imprisonment on the bank robbery

convictions, a consecutive term of 84 months on the first firearm conviction, and a

consecutive term of 300 months on the second firearm conviction, for a total of 462

months (38.5 years).

                                              3
       Powell appeals.

                                              II.

       Powell argues that several errors at trial rendered the proceedings unfair. The

majority of Powell’s claims have been raised for the first time on appeal and will be

reviewed for plain error. Fed. R. Crim. P. 52(b) (“[a] plain error that affects substantial

rights may be considered even though it was not brought to the court’s attention”).2 To

the extent the arguments were raised before the District Court, the appropriate standard of

review will be addressed herein.

       First, Powell argues that the District Court erred by granting a prospective juror’s

request to be excused from jury service due to a hearing impairment. This argument

lacks merit. As the Government points out, Powell subsequently excused for cause

another prospective juror who disclosed a similar hearing impairment. The District Court

committed no error, let alone plain error. See 28 U.S.C. § 1865(b)(4) (authorizes district

judge to exclude a juror who “is incapable, by reason of mental or physical infirmity, to

render satisfactory jury service”).

       Second, Powell claims that the District Court committed numerous errors with

respect to evidentiary admissions at trial.

       To begin, Powell argues that the District Court erred by denying his motion to

suppress his statement made during his arrest directing the arresting officers to the



       2
         Under this standard we must find: (1) an error was committed; (2) the error was
plain; and (3) the error affected the defendant’s substantial rights. United States v.
Knight, 

, 206 (3d Cir. 2001).
                                              4
location of his firearm.3 We agree with the Government, and the District Court, that the

“public safety” exception to the Miranda rule, recognized in New York v. Quarles, 

, 659 (1984), applies in this case. Even though the officers had control over

Powell and no members of the public were present in Powell’s apartment, the officers

were aware that Powell had prior felony convictions involving use of a weapon and that

he was suspected of involvement in armed robbery. See, e.g., United States v. Are, 

, 505-06 (7th Cir. 2009) (held public safety exception applies where officers had

prior knowledge of suspect’s involvement with firearms).

      Powell also argues that the District Court should have sua sponte suppressed his

cell phone records obtained from his wireless carrier under 18 U.S.C. § 2703(d). He

claims that the Government failed to comply with the requirements of § 2703(d) that

requires the Government to provide “specific and articulable facts showing that there are

reasonable grounds to believe that the contents of a wire or electronic communication, or

the records or other information sought, are relevant and material to an ongoing criminal

investigation.” The Stored Communications Act, 18 U.S.C. § 2701 et seq. (providing

under § 2703(c)(1)(B) that the Government may require a service provider to disclose

records pursuant to a § 2703(d) order), affords no suppression remedy for non-

constitutional violations. See 18 U.S.C. § 2708. See also United States v. Clenney, 631


      3
         Because Powell had raised this argument at the suppression hearing, we review
the District Court’s factual findings for clear error, and exercise plenary review of the
Court’s application of the law to those facts. United States v. Riddick, 

, 509
(3d Cir. 1998).


                                            

, 667 (4th Cir. 2011) (there is no exclusionary rule generally applicable to

statutory violations). Accordingly, even if Powell had shown a violation of the statute,

exclusion would not be the appropriate remedy.

       The Government’s failure to produce its § 2703(d) applications before trial is of

no moment. The Government had no duty to disclose the applications during discovery

because the information therein is in no way favorable to Powell or material to either

guilt or punishment. See United States v. Bagley, 

, 676 (1985). If Powell

believed that the applications were material to his defense, he could have sought an order

compelling their production before trial. See Fed R. Crim. P. 16.4

       Relatedly, Powell argues that a new trial is warranted because the Government’s

expert witness on cell site location data, FBI Agent William Shute, testified to matters

beyond the scope of the Government’s Rule 16 disclosure. Powell has not demonstrated

how the verdict would have been different if he had received a more complete disclosure

under Fed. R. Crim. P. 16(a)(1)(G) and, as a result, has failed to establish prejudice

required for reversal. Moreover, defense counsel undermined Shute’s conclusions




       4
         In any case, the Government’s applications meet the § 2703(d) standard, which is
“a lesser one than probable cause.” In re Application, 

, 313 (3d Cir. 2010).
The Government stated specific facts in its applications that provided a basis for
believing that Powell was a suspect and that cell phone records were relevant to solving
the case. See App. at 24-29, 33-39.

                                             6
through its vigorous cross-examination of his methods and presentation of a rebuttal

expert witness.5

       Powell also takes issue with the testimony of Agent Gillen. Agent Gillen did not

provide inadmissible hearsay. To the extent that Agent Gillen violated Fed. R. Evid.

701(b)’s helpfulness requirement by drawing inferences that the jury was equally capable

of drawing (e.g. his testimony that the gun and pants are similar to those seen in the

video), Powell has provided no persuasive argument how this affected the outcome.6

       In addition, Powell argues that the District Court abused its discretion by allowing

extensive testimony by the female victims of the robberies as to the effect of the

robberies on their ongoing health and mental state. Although Powell acknowledges that

evidence of intimidation is relevant in bank robbery prosecutions, he argues that

introduction of the evidence in this case warrants a new trial because he conceded that

display of a weapon would suffice to prove the intimidation element. As the Government

counters, Powell did not make a formal stipulation. Moreover, we disagree with Powell’s

       5
         We reject Powell’s additional arguments regarding Agent Shute’s testimony.
Contrary to Powell’s contention, the Government’s letter, provided to defense counsel
prior to trial in response to the District Court’s order, appears in the supplemental
appendix at page 871. In addition, Powell cannot complain on appeal that Agent Shute
violated the hearsay prohibition inasmuch as defense counsel elicited the complained of
testimony on cross-examination. See United States v. Console, 

, 660 (3d Cir.
1993) (invited error cannot be a basis for reversal).
       6
         We further reject Powell’s new argument that the Government violated its
discovery obligations by eliciting surprise expert testimony when Agent Gillen testified
as to the meaning of slang terminology contained in a text message sent from Powell’s
cell. Powell has provided no authority for his assertion that testimony regarding the
meaning of the word “stack” constitutes expert testimony and has provided no
explanation for how this testimony prejudiced him in any way.

                                             7
characterization of the victims’ testimony on this point as “extensive.” Appellant’s Br. at

29. The testimony regarding the effect of the robbery is insignificant when considered

against the backdrop of hundreds of pages of testimony.

         Powell further argues that the Government elicited inadmissible propensity

evidence through McKinney without affording proper pre-trial notice.7 The Government

claims that it did not expect McKinney to provide this answer, so we cannot fault it for

not providing advance notice. Powell also argues that this testimony regarding his prior

bad acts was not relevant and, even if relevant, was unfairly prejudicial. The testimony

was relevant because it provided necessary background distinct from propensity evidence

in that it explained McKinney’s motive for testifying (i.e. he was concerned about

violating his probation by having contact with a known felon). With respect to unfair

prejudice, where a defendant has failed to object on the basis of Fed. R. Evid. 403, this

court will “seldom find plain error.” United States v. Gatto, 

, 457 (3d Cir.

1993).

         Additionally, Powell argues that the District Court should have granted a mistrial

when a Government witness refused to answer cross-examination questions that might

disclose where she lived. The Court committed no such error. Defense counsel agreed to

the District Court’s proposed solution to excuse the witness and strike her testimony.

Powell has provided no persuasive reason to reverse course now.


         7
        When asked whether there were any conversations that he had with Powell that
caused him concern that he reported to his probation officer, McKinney testified
“[Powell] mentioned he was robbing drug dealers in Philadelphia,” and he was “[l]ooking
at some banks.” Supp. App. at 269.
                                              8
       Next, Powell argues that the Government engaged in prosecutorial misconduct

during its opening statement and summation by impermissibly expressing its personal

opinion and appealing to the jury’s emotions. Because the prosecutor only referred to

evidence that the Government expected to (and properly did) introduce at trial, there was

no prejudice.

       Finally, Powell argues that the District Court coerced a verdict through its

supplemental communications with the jury during deliberations. We have considered

Powell’s arguments and find nothing in the record to support his claim of coercion.

       Because we conclude there was no evidentiary or instructional error or

prosecutorial misconduct, Powell’s cumulative error claim also fails. The cumulative

effect of each non-error does not rise to constitutional error; as the saying goes, zero plus

zero equals zero.

                                             III.

       In the alternative, Powell challenges his sentence as substantively unreasonable.8

Powell argues that the District Court should have “temper[ed] the statutory severity of the

[§ 924(c)] counts [that combined carry a mandatory minimum of 32 years]” by imposing

sentences of only one day imprisonment for each of the bank robbery counts.

Appellant’s Br. at 48. The District Court properly refused to give any weight to the

severity of the statutory minimum sentences for the § 924(c) counts when determining

       8
         A defendant challenging his sentence bears the burden of showing that his
sentence is unreasonable. United States v. King, 

, 194 (3d Cir. 2006). We
apply an abuse of discretion standard, Rita v. United States, 

, 350-51 (2007),
but we accord great deference to the District Court’s choice of final sentence, United
States v. Lessner, 

, 204 (3d Cir. 2007).
                                              9
the sentence for the bank robbery counts. See, e.g., United States v. Williams, 

, 834 (8th Cir. 2010) (held district court may not use presence of 924(c) add-on to

reduce a defendant’s sentence for underlying crime); United States v. Chavez, 

, 135 (2d Cir. 2008) (same); United States v. Roberson, 

, 436 (7th Cir.

2007) (same).

       In any event, we are satisfied that the District Court adequately considered the

applicable § 3553(a) factors when it declined to grant Powell’s request for a downward

variance and imposed a bottom-of-the-range sentence of 462 months imprisonment. See

United States v. Tomko, 

, 568 (3d Cir. 2009) (en banc) (we will affirm

sentence “unless no reasonable sentencing court would have imposed the same sentence

on that particular defendant for the reasons the district court provided”).

                                             IV.

       Based on the foregoing, we will affirm the District Court’s judgment of conviction

and sentence.




                                             10