Filed: Apr. 17, 2007
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 4-17-2007 USA v. Lowe Precedential or Non-Precedential: Non-Precedential Docket No. 05-2060 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "USA v. Lowe" (2007). 2007 Decisions. Paper 1286. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1286 This decision is brought to you for free and open access by the Opinions of the United States C
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 4-17-2007 USA v. Lowe Precedential or Non-Precedential: Non-Precedential Docket No. 05-2060 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "USA v. Lowe" (2007). 2007 Decisions. Paper 1286. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1286 This decision is brought to you for free and open access by the Opinions of the United States Co..
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Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
4-17-2007
USA v. Lowe
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2060
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"USA v. Lowe" (2007). 2007 Decisions. Paper 1286.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1286
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-2060
UNITED STATES OF AMERICA
v.
LARNELL LOWE,
a/k/a L-Lowe,
Larnell Lowe,
Appellant
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 04-cr-00131-3)
District Judge: Honorable Yvette Kane
Submitted Under Third Circuit LAR 34.1(a)
March 26, 2007
Before: RENDELL, BARRY and CHAGARES, Circuit Judges
(Filed April 17, 2007)
OPINION OF THE COURT
RENDELL, Circuit Judge.
Larnell Lowe was convicted by a jury of two counts of carjacking, in violation of
18 U.S.C. § 2119, two counts of using a firearm in furtherance of a crime of violence, in
violation of 18 U.S.C. § 924(c), and one count of conspiracy to use a firearm in
furtherance of a crime of violence, in violation of 18 U.S.C. § 924(o). The District Court
sentenced him to 504 months imprisonment, 3 years supervised release, a $2,500 fine, a
special assessment of $100 for each count, and restitution to the victims. Lowe appeals
his convictions on the ground that they were supported by insufficient evidence. We
have jurisdiction over Lowe’s appeal pursuant to 28 U.S.C. § 1291 and we will affirm.
I.
On January 1, 2004, Lowe and several other men attacked Grady Walker
(“Grady”) outside the Calabash restaurant in Harrisburg, Pennsylvania, stealing his cell
phone, money and car keys. Grady, as well as Lowe’s co-defendants Phillip Walker
(“Phillip”) and Brian Pendelton, who testified after entering into plea agreements, stated
that Lowe participated in the attack. According to Phillip, Lowe and the other men
spotted Grady and decided to rob him because he was from the “uptown” section of
Harrisburg. Grady and Phillip both testified that Lowe put a gun to Grady’s face at one
point during the attack. Phillip testified that the attackers took Grady into an alley, beat
him with a shotgun and asked for his car keys. One of the attackers took the keys and
drove away in Grady’s car, which was parked across the street from the restaurant. Lowe
fled after the attack.
Some of the testimony describing the attack on Grady was inconsistent. Pendelton
testified that he was not present during the attack and only heard about it later, while both
Grady and Phillip testified that Pendelton participated in the attack. Grady and Phillip
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also disagreed as to who, besides Lowe, participated in the attack and as to who, besides
Lowe, put a gun to Grady’s face. They also disagreed about who drove away in Grady’s
car.
Approximately one hour after the carjacking of Grady Walker, a group of men
including Lowe robbed Bryant Mathes and his fiancée, Angela Terry, in an area that was
about a fifteen-minute walk from the Calabash. According to Pendelton, as the group
approached Mathes’ car, Lowe said “let’s get them.” As Mathes and Terry were getting
out of the car, the group of men approached them. One put a gun to Mathes’ head and
several of them took Mathes’ watch and ring. They asked for Mathes’ car keys and one
or more of the men drove away in his car. While several men were attacking Mathes,
several others were on the other side of the car, pointing a gun at Terry and taking her
purse. Neither Mathes nor Terry could identify the attackers.
There was some inconsistency in the testimony about the carjacking of Mathes and
Terry. Phillip and Pendelton disagreed as to who participated in the carjacking, but both
said that Lowe did. Terry said that two men drove away in the car, while Mathes said that
three men drove away in the car, and Phillip and Pendelton both testified that Pendelton
alone drove away in the car. Furthermore, before Lowe’s trial, Phillip had named other
people as participants in the carjacking, but at trial, Phillip conceded that these
individuals were not involved. Phillip testified that he named these additional people
because he was threatened.
At trial, the parties also stipulated that:
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[I]f the Government called witnesses to testify as to where the two
automobiles at issue in this case were manufactured, they would testify that
[the car] that was taken from Grady Walker on January 1st, 2004, was
manufactured in . . . Mexico, and therefore traveled in interstate or foreign
commerce, and that [the car] taken from Bryant Mathes on January 1st,
2004, was manufactured in Marysville, Ohio, and therefore traveled in
interstate or foreign commerce.
A jury convicted Lowe of the carjackings of Grady Walker and Bryant Mathes,
two counts of using or carrying a firearm during and in relation to a crime of violence,
and one count of conspiracy to possess firearms in furtherance of a crime of violence.
Lowe moved for a judgment of acquittal at the close of the government’s case and after
the verdict, on the ground that there was insufficient evidence to support the convictions.
Lowe did not raise any objection to the sufficiency of the evidence to prove that the stolen
vehicles had been transported in interstate commerce. The District Court denied these
motions, finding that the government presented sufficient evidence to support Lowe’s
convictions. This appeal followed.
II.
Our review of the sufficiency of the evidence to support a conviction is plenary.
United States v. Mussare, 405 F.3d 161, 166 (3d Cir. 2005). “We will reverse a jury
verdict for insufficiency of the evidence ‘only when the record contains no evidence,
regardless of how it is weighted, from which the jury could find guilt beyond a reasonable
doubt.’”
Id. (internal citations omitted). “We must view the evidence in the light most
favorable to the government and must sustain a jury’s verdict if ‘a reasonable jury
believing the government’s evidence could find beyond a reasonable doubt that the
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government proved all the elements of the offenses.’” United States v. Rosario, 118 F.3d
160, 163 (3d Cir. 1997) (internal citations omitted).
III.
Lowe first argues that the evidence that the stolen cars were manufactured outside
of Pennsylvania is insufficient to prove that they were transported, shipped or received in
interstate commerce. We will engage in plain error review, and we find no such error.
See United States v. Peppers, 302 F.3d 120, 125 (3d Cir. 2002) (stating that we review for
plain error where defendant fails to “preserve an objection to the sufficiency of the
evidence”). Lowe stipulated at trial that a government witness, if called, would have
testified that the stolen cars were manufactured outside of Pennsylvania and that they
“therefore traveled in interstate or foreign commerce.” This evidence was sufficient to
allow a reasonable jury to find beyond a reasonable doubt that the stolen cars were
transported in interstate commerce. See United States v. Lake,
150 F.3d 269, 273 (3d Cir.
1998) (holding that police officer’s testimony that “no motor vehicles are manufactured in
the Virgin Islands” was sufficient to establish that cars stolen in Virgin Islands traveled in
interstate commerce).
IV.
Lowe next claims that the evidence was not sufficient to support his conviction for
the carjacking of Grady Walker. In order to prove a violation of 18 U.S.C. § 2119, “the
prosecution must prove that the defendant (1) ‘with intent to cause death or serious bodily
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harm’ (2) took a motor vehicle (3) that had been ‘transported, shipped, or received in
interstate or foreign commerce’ (4) ‘from the person or presence of another’ (5) ‘by force
and violence or by intimidation.’” Lake, 150 F.3d at 272.
Lowe argues that the government did not establish that he participated in taking
the car, or that he was vicariously liable as a co-conspirator under Pinkerton v. United
States, 328 U.S. 640 (1946). To prove Pinkerton liability, the government must establish:
1. That a conspiracy existed in that there was an agreement between
individuals to align themselves with others in the criminal venture;
2. That having so aligned themselves together, one or more of the others of
them acted to commit the substantive offense; and
3. That the substantive offense was committed in furtherance of the criminal
venture in which the defendant had aligned himself with others.
United States v. Lopez, 271 F.3d 472, 480 (3d Cir. 2001).
Lowe argues that there was no evidence of a specific agreement to take the car.
However, for Pinkerton liability, the government was not required to prove the existence
of an agreement to take the car. Instead, the government had the burden to prove that
Lowe participated in a conspiracy and that one or more of the conspirators committed the
carjacking in furtherance of the conspiracy. As the District Court noted in denying
Lowe’s motion for acquittal, the agreement necessary for a conspiracy “can be inferred
from evidence of related facts and circumstances from which it appears as a reasonable
and logical inference, that the activities of the participants . . . could not have been carried
on except as the result of a preconceived scheme or common understanding.” United
States v. Pressler, 256 F.3d 144, 149 (3d Cir. 2001) (internal citations omitted). Further,
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“[t]he government need not prove that each defendant knew all of the conspiracy’s
details, goals, or other participants.” United States v. Gibbs, 190 F.3d 188, 197 (3d Cir.
1999). In this case, there was testimony from one of the participants in the robbery that
Lowe and others “decided to rob” Grady Walker and then proceeded to approach him
outside the Calabash restaurant, assault him and take his car keys and other possessions.
Thus, there was sufficient evidence for a jury to conclude that Lowe conspired to rob
Grady Walker and that the carjacking was committed in furtherance of the robbery
conspiracy.
Lowe also argues that the evidence was insufficient to prove that the assault was
committed with the intent of taking the car. In United States v. Applewhaite, we found
that the evidence was insufficient to prove that the defendants had the requisite intent
because they took the vehicle as a mere “afterthought” to the assault, in order to transport
the victim’s body away from the site of the crime. 195 F.3d 679, 685 (3d Cir. 1999).
Here, however, both Grady Walker and Philip Walker testified that the attackers asked for
Grady’s car keys while they were assaulting him. This is sufficient evidence that the
assault was committed with the intent of taking Grady’s car.
Finally, Lowe argues that the evidence was insufficient to prove that the carjacking
participants intended to cause death or serious bodily injury to Grady Walker if he did not
surrender his car. In Lopez, we held that where “the defendants insisted [the victim] give
them her keys in the course of a robbery and assault,” there was sufficient evidence of an
intent to cause death or serious harm. 271 F.3d at 486. In this case, there was evidence
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that the attackers repeatedly asked Grady Walker for his keys while pointing a gun at him.
This evidence was sufficient to prove that the attackers intended to cause death or serious
bodily injury if Grady Walker did not surrender his keys.
V.
Lowe’s last argument is that there was insufficient evidence to sustain his
conviction for the carjacking of Bryant Mathes and Angela Terry because “the
government’s case consisted primarily of the testimony of two co-defendants whose
testimony was inconsistent with each other, prior statements and accounts of the victims.”
As the District Court noted, “[Lowe] appears to be arguing not so much that no evidence
exists to support his conviction for the Mathes/Terry carjacking, but that the evidence at
trial was contradictory and untrustworthy.” It is not our role “to weigh the evidence or to
determine the credibility of the witnesses.” United States v. Voigt, 89 F.3d 1050, 1080
(3d Cir. 1996) (internal citations omitted). We may not overturn a conviction unless “the
record contains no evidence, regardless of how it is weighted, from which the jury could
find guilt beyond a reasonable doubt.” United States v. Anderson,
108 F.3d 478, 481 (3d
Cir. 1997) (internal citation omitted). Viewing the evidence in the light most favorable to
the government,
id., we conclude that there was sufficient evidence presented at trial to
permit a rational trier of fact to conclude beyond a reasonable doubt that Lowe was guilty
of the Mathes carjacking.
VI.
Accordingly, for the reasons set forth above, we will affirm Lowe’s convictions.
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