Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-17-2009

USA v. Berryman
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1948




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                                                              NOT PRECEDENTIAL


                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                    _____________

                                     No. 08-1948
                                    _____________

                           UNITED STATES OF AMERICA

                                          v.

                                FRANK BERRYMAN,

                                         Appellant



                   On Appeal From the United States District Court
                       for the Eastern District of Pennsylvania
                                     (04-425-01)
                    District Judge: Honorable Petrese B. Tucker


                      Submitted Under Third Circuit LAR 34.1(a)
                                  March 12, 2009

           Before: FUENTES, CHAGARES, and TASHIMA,* Circuit Judges

                                (Filed April 17, 2009)
                                   _____________

                             OPINION OF THE COURT
                                 _____________


CHAGARES, Circuit Judge.


      *
        Honorable A. Wallace Tashima, Senior United States Circuit Judge for the
United States Court of Appeals for the Ninth Circuit, sitting by designation.
       Frank Berryman appeals from the District Court’s judgment of conviction and

sentence. We will affirm.

                                             I.

       On March 9, 2004, at about 6:00 p.m., three men robbed John Coscia’s gun store

in Palmer Township, Pennsylvania (about 70 miles north of Philadelphia). One of those

men pulled a gun on Coscia, pistol-whipped him, and sat on him while the two

accomplices looted the store. The next day, March 10, 2004, Palmer Township police

asked Coscia to identify the robber who assaulted him from an array of six photos of men

other than Berryman. Coscia did not make an identification.

       On March 24, 2004, Philadelphia police stopped a car with a broken headlight. As

an officer approached the car, he noticed a gun next to the driver. He removed the driver

from the car and handcuffed him. All the while, the passenger, Berryman, was fidgeting

in his seat. He told officers that the permit for the gun was in the center console. Police

opened the compartment and found not paperwork but rather marijuana and crack

cocaine. They also saw a gun underneath the passenger seat.

       The officers removed Berryman from the vehicle. When one officer, who had his

eyes on Berryman, turned away to talk to his partner, Berryman fled. Police chased

Berryman for three blocks before ultimately apprehending him and arresting him on state

gun- and drug-possession charges. After police identified the gun under the passenger

seat as one of the weapons stolen during the March 9, 2004 robbery, the Commonwealth

added a receipt-of-stolen-property charge.

                                             2
         On or about April 7, 2004, police showed Coscia another photo array, this one

containing Berryman’s photo and five others. Coscia picked Berryman as the man who

assaulted him during the robbery.

         On April 12, 2004, Palmer Township Police Detective Daniel Monek visited

Berryman in state prison in order to discuss the robbery. Berryman waived his rights

under Miranda v. Arizona, 

(1966), and Monek began the interrogation.

Berryman denied having possessed the stolen gun and denied having taken part in the

robbery. Monek told him that the robbery happened on March 9, 2004, and Berryman

said he could not have committed the robbery that day because he was under house arrest

and had not left the house. Electronic monitoring records revealed this to be incorrect:

while Berryman was indeed on house arrest that day, he was out of the house for several

hours.

         On June 30, 2004, the Commonwealth dismissed the state charges. On July 15,

2004, Bureau of Alcohol, Tobacco, and Firearms special agents arrested Berryman on a

criminal complaint for robbery and various gun-possession offenses. Berryman was

given the Miranda warnings and waived his rights. Special Agent Timothy Shelton then

interrogated him about the robbery. As he did when speaking with Monek, Berryman

gave his false house-arrest alibi.

         Later in July 2004, Berryman became cellmates with Christopher Plytas. One day,

Berryman confessed to Plytas that he played a key role in the robbery of Coscia’s gun

store.

                                             3
       On July 21, 2004, the Government obtained an indictment, and on December 21,

2004, it obtained a superseding indictment charging one count of conspiracy to interfere

with commerce by robbery in violation of 18 U.S.C. § 1951(a), one count of interference

with commerce by robbery in violation of § 1951(a), one count of using and carrying a

firearm during a crime of violence in violation of § 924(c)(1)(A)(ii), two counts of

possession of a stolen firearm in violation of § 922(j), one count of possession of cocaine

base in violation of 21 U.S.C. § 844(a), and two counts of being a convicted felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

       The case proceeded to trial. The District Court dismissed the drug count, and the

jury ultimately convicted Berryman of each of the remaining counts. The District Court

then imposed a sentence of 210 months of imprisonment on the robbery and gun-

possession offenses, and a consecutive sentence of 84 months of imprisonment on the §

924(c)(1)(A)(ii) offense, for a total of 294 months of imprisonment.

       Berryman then filed this appeal raising numerous evidentiary and constitutional

challenges to the District Court’s judgment of conviction and sentence. The District

Court had jurisdiction pursuant to 18 U.S.C. § 3231, and this Court has jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

                                            II.

                                            A.

       Berryman argues that the District Court’s admission of his prior statements

revealing he was on house arrest at the time of the robbery, and computerized monitoring

                                             4
records relating to that house arrest, violated Federal Rule of Evidence 404(b). Berryman

raised this issue for the first time in a post-verdict motion,1 and the District Court rejected

it. We review the District Court’s ruling for plain error. United States v. Small, 

, 55-56 (3d Cir. 1989) (applying plain-error review to claim of trial error raised first in

timely post-verdict motion).

       Rule 404(b) provides that extrinsic evidence of “other crimes, wrongs, or acts”

may not be offered to prove the defendant’s criminal propensity. But, such evidence may

be admitted if (1) it has a proper purpose, (2) it is relevant, (3) its probative value

outweighs its potential for unfair prejudicial effect, and (4) the court instructs the jury to

consider it only for its limited, proper purpose. United States v. Vega, 

, 261

(3d Cir. 2002).

       Berryman’s claim is meritless. The portions of the statements that reference house

arrest, combined with the computerized records, demonstrate Berryman’s opportunity to

commit the crime and his consciousness of guilt in lying about it. The Government

attempted to show that Berryman gave a false alibi. That is, Berryman claimed to have

been at home, on house arrest during the time of the robbery. The records showed

otherwise. For that reason, the evidence was relevant. To be sure, this evidence is

prejudicial. But that prejudice is outweighed by its probative value. Berryman’s


       1
        In a motion in limine, Berryman made what appear to be objections based upon
Rules 402 and 403, see Supplemental Appendix (Supp. App.) 561, but he made no
objection based upon Rule 404(b). At trial, he reiterated the Rule 403 objection, see
Supp. App. 105, but again failed to implicate Rule 404(b).

                                               5
statements, and the associated computer records directly contradicting them, disprove

Berryman’s alibi much more forcefully than, for example, would his proposed method of

dealing with this evidence: introducing the testimony of a purported eyewitness who

stated that he observed Berryman outside of the home at the time Berryman claimed to

have been inside. See Supp. App. 117.

       And as to the required jury instruction, defense counsel asked the District Court to

refrain from giving a cautionary instruction until the defense requested one. The defense

did not request one at the time the evidence was introduced. The District Court did

provide such an instruction at the end of the trial. It told the jury: “You are not to

speculate as to the reason for [the house arrest] and you are not to draw any inference

from it. You may not consider it as a factor in your deliberations as to whether or not the

defendant is guilty or not guilty.” Supp. App. 495. At the defense’s request, the District

Court amplified this instruction, stating:

               You heard during the course of this trial that the defendant Frank Berryman
       was on house arrest during the month of March, 2004. You are not to speculate as
       to the underlying reason for him being on house arrest. You cannot draw any, you
       are not to draw any inference as to the underlying case. However, you may
       consider the monitoring records and procedures, evidence that was offered to you
       in this case and give it whatever weight you may think it deserves.

Appendix (App.) 132-33. The defense did not object.

       Even if this instruction was not ideal, it did “inform the jurors of the limited use

they may make” of the house-arrest evidence. United States v. Morley, 

,

133 (3d Cir. 1999). Further, it instructed them “not to draw any inference of bad


                                              6
character from [the evidence].” 

first instruction went further than merely

telling the jurors not to consider it in evaluating Berryman’s character. That instruction

told them not to “consider it as a factor in [their] deliberations as to whether or not the

defendant is guilty or not guilty.” Supp. App. 495. In any event, it cannot be said that the

District Court’s instructions “‘seriously affect[ed] the fairness, integrity or public

reputation of [the] judicial proceedings,’” United States v. Young, 

, 15 (1985)

(quoting United States v. Atkinson, 

, 160 (1936)), or caused a “‘miscarriage

of justice,’” 

States v. Frady, 

, 163 n.14 (1982)).

       Accordingly, the District Court’s admission of evidence mentioning Berryman’s

house arrest was not plainly erroneous.

                                              B.

       Berryman argues that admission of Coscia’s identification of Berryman from the

April 7, 2004 photo array was improper. Berryman raised this claim first at trial and

again in a post-verdict motion. The District Court rejected it. We engage in plenary

review of the District Court’s conclusions of law and clearly erroneous review of its

conclusions of fact. United States v. Perez, 

, 336 (3d Cir. 2002).

       Berryman contends that the admission was improper because the April 7, 2004

array contained (1) a photo of Berryman taken when he was 18 years old, though he was

24 years old at the time of the robbery, (2) three of the same photos that Coscia saw in the

March 10, 2004 array, and (3) one photo of a man who appeared to be substantially older

than the men in the five other photos. This claim is without merit.

                                               7
       Eyewitness testimony will be permitted unless the pre-trial identification

procedure was so unnecessarily suggestive as to give rise to such a substantial likelihood

of misidentification that admitting the identification testimony would be a denial of due

process. United States v. Emanuele, 

, 1128 (3d Cir. 1995). “A suggestive

and unnecessary identification procedure does not violate due process so long as the

identification possesses sufficient aspects of reliability . . . .” 

v.

Brathwaite, 

, 116 (1977)) (internal quotation marks omitted). To determine

reliability, we examine the totality of the circumstances, including “the witness’ [sic]

original opportunity to observe [the] defendant and the degree of attention during that

observation; the accuracy of the initial description; the witness’ [sic] degree of certainty

when viewing [the] defendant or his imagine; and the length of time between the crime

and the identification procedure.” 

v. Biggers, 

, 199-200

(1972)) (internal quotation marks omitted).

       Here, even if the contents of the second array were suggestive and unnecessary,

admission of the identification was proper because the identification was reliable under

the circumstances. Coscia had an adequate opportunity to view Berryman and devoted

considerable attention to him while doing so. Before Berryman pulled a gun on Coscia,

Berryman feigned an attempt to conduct a face-to-face business transaction with him in

good lighting. See Supp. App. 152-55. When he was shown the second array, he

identified Berryman without hesitation. See Supp. App. 82-83. And the second array

was presented less than a month after the robbery. See 

(holding

                                               8
identification occurring seven months after crime was reliable). These factors strongly

suggest that the identification based on the second array was reliable. Admitting that

identification, then, was proper.2

                                             C.

       Berryman argues that the Government violated his Sixth Amendment right to

counsel by “deputizing” Plytas as a federal agent, failing to advise Berryman of his right

to counsel, and failing to obtain a waiver of that right before Berryman admitted to Plytas

that he played a key role in the robbery of Coscia’s gun store. Berryman argues, then,

that Plytas’s testimony to this effect should be suppressed. Berryman moved before trial

to suppress Plytas’s testimony, but he did not make the Sixth Amendment argument he

makes on appeal until after trial, in his post-verdict motion. Therefore, these Sixth

Amendment arguments are waived. See United States v. Rose, 

, 177 (3d

Cir. 2008) (interpreting Federal Rule of Criminal Procedure 12(b)(3)).

       Berryman makes two counterarguments. First, he claims that, because the

Government had not provided all of the information it had in its possession about Plytas

until just before trial was set to begin, Berryman should be excused from failing to raise

this ground for suppression before trial. This argument fails, however, because defense

counsel requested and received a continuance in light of these disclosures, yet still did not



       2
        Though we reach this conclusion based upon reliability analysis, we agree with
the District Court that the evidence related to the photo-array identification “was not
defective” in the first place. App. 164.

                                              9
raise its Sixth Amendment argument before trial (or at the very least, seek another such

continuance). See Supp. App. 17-18. Further, in his appellate brief, the bulk of

Berryman’s record citations to trial testimony concerning Plytas’s prior dealings with the

Government stem from information which was disclosed well in advance of trial. See,

e.g., Appellant’s Br. at 37; Supp. App. 14-18.

       Second, Berryman argues that, in any event, Rose speaks only to the application of

Rule 12 when a defendant makes a suppression argument for the first time on appeal, and

Berryman made his Sixth Amendment argument for the first time in a timely post-verdict

motion. This again has no merit, as Rule 12 in its terms requires that suppression

arguments must be raised “before trial.” Fed. R. Crim. P. 12(b)(3)(C), (e); cf. Fed. R.

Crim. P. 12(b)(3)(B) (providing that motion alleging defect in indictment or information

may be filed “at any time while the case is pending”).



                                               D.

       Berryman argues that the Government violated its obligation under Brady v.

Maryland, 

(1963), to disclose any information in its possession that was

favorable to Berryman’s case and material to the case’s outcome. Berryman made a

Brady request before trial and in a post-verdict motion. The District Court ruled that the

Government did not violate Brady. We exercise plenary review of the District Court’s

conclusions of law and clearly erroneous review of its conclusions of fact. United States

v. Pelullo, 

, 886 (3d Cir. 1994).

                                               10
       The prosecution violates Brady where it suppresses evidence that is favorable to

the defendant and material to the outcome of the case. Evidence is deemed “suppressed”

if the prosecution actually knows about it but does not disclose it, but evidence is also

deemed “suppressed” if the prosecution constructively knows about it – for example, if a

member of the wider “prosecution team,” including non-lawyer investigators, knows

about it – but does not disclose it. See United States v. Reyeros, 

, 281 (3d

Cir. 2008). Evidence is “material” when there is a reasonable probability that, if it had

been disclosed before trial, the defendant would have been acquitted. Kyles v. Whitley,

, 432-42 (1995). Therefore, by definition, evidence that is merely

cumulative of evidence that was disclosed cannot be material because defense counsel

already had it (or had access to it). See United States v. Boone, 

, 191 (3d

Cir. 2002); United States v. Hill, 

, 138 (3d Cir. 1992). A “reasonable

probability” does not require a greater-than-fifty-percent chance, but it does require more

than mere speculation. 

. Put another way, the reviewing court

must determine “whether the favorable evidence could reasonably be taken to put the

whole case in such a different light as to undermine confidence in the verdict.” Strickler

v. Greene, 

, 290 (1999).

       Berryman argues that the Government violated Brady by failing to disclose that

three of the six photos in the array presented to Coscia on April 9, 2004 had been used in

the array presented to him several weeks before. This claim is meritless. Berryman had

in his possession actual copies of each photo array in question. Simply comparing those

                                             11
arrays would have yielded the information Berryman claims the Government should have

provided directly. Compare App. 200 with App. 201. Indeed, the defense made this very

comparison in its closing argument. See Supp. App. 444-46. Disclosure, then, would not

have added anything new, and therefore would not have increased the chances that a

different verdict (namely, an acquittal) would have been returned. See 

; 

.

       Berryman next argues that the Government violated Brady by failing to disclose

Monek’s rough notes of his interview with Berryman. He argues that the notes may

undercut the inculpatory value of the statements he gave to Monek and Shelton. Namely,

he posits that the notes may reveal that Monek told Berryman the robbery occurred on a

weekend, which would make Berryman’s statement (to Monek and later to Shelton) that

he was home on house arrest during the time of the robbery truthful, and not a “false

alibi” as the Government contended. This Brady claim, too, is without merit. The

Government represented, and the District Court accepted, that Monek never took any

notes in the first place. Further, Berryman offers nothing more than mere speculation that

the notes (if they did exist) would reveal Monek said that the robbery occurred on the

weekend. The available evidence indeed suggests otherwise. Monek testified that he told

Berryman that the robbery occurred on March 9, 2004 (a Tuesday). Supp. App. 85.

Defense counsel, on cross-examination, asked Monek whether he told Berryman what

day of the week March 9, 2004 was, and Monek testified that he did not believe so. Supp.

App. 92. Defense counsel then moved to another line of questioning. Supp. App. 92-93.

                                            12
Accordingly, this Brady claim fails. See United States v. Ramos, 

, 71 (3d Cir.

1994) (holding that “mere speculation” that unproduced rough notes contain information

discoverable under Brady, taken together with Government’s representation to the

contrary and other evidence tending to suggest that notes would not be material, cannot

form the basis for a Brady violation).

                                            E.

       Berryman argues that Monek and Shelton violated his Sixth Amendment right to

counsel by interrogating him without counsel present. He made this claim in a pre-trial

motion, and the District Court rejected it. We engage in plenary review of the District

Court’s conclusions of law and clearly erroneous review of its conclusions of fact. 

.

       A defendant’s Sixth Amendment right to counsel attaches to a certain charge when

the prosecution of that charge commences. Brewer v. Williams, 

, 398

(1977). If the suspect is not represented by counsel on that charge and has not yet

invoked the right (for example, by asking for a lawyer), he may waive the right and

submit to police questioning. Patterson v. Illinois, 

, 291 (1988). When

Monek interviewed Berryman on April 12, 2004, about the robbery, no criminal

proceedings involving Berryman had begun with respect to that charge. Thus,

Berryman’s Sixth Amendment right to counsel had not yet attached to the federal robbery




                                            13
charge.3 Therefore, the right could not have been violated; Monek’s interrogation was

constitutionally proper.

       Berryman’s right to counsel did not attach to the federal robbery charge until after

Shelton’s July 15, 2004 interrogation, when Berryman made his initial appearance in

federal court. See United States v. Muzychka, 

, 1064-65, 1068 (3d Cir.

1984) (holding that, where preliminary hearing or arraignment has not yet occurred, arrest

alone does not trigger Sixth Amendment right to counsel); Supp. App. 247 (indicating

that interrogation was contemporaneous with arrest and therefore prior to preliminary

hearing held later that day). Therefore, anything that occurred during that interrogation

could not have violated Berryman’s Sixth Amendment right to counsel. Shelton’s




       3
         Berryman argues that the right to counsel attached to the federal robbery charge
on March 24, 2004, the day he was arrested on the state gun- and drug-possession
charges, because those charges are “indistinguishable” from the federal robbery charge.
Appellant’s Br. at 51. Berryman is mistaken.
        True, when the right to counsel attached to the state gun- and drug-possession
charges, it also attached to all charges that are “the same” as any of those charges, within
the meaning of Blockburger v. United States, 

(1932). See Texas v. Cobb,

, 172-73 (2001). Two charges are “the same” if the they each punish “the
same act or transaction” and if all of the elements of one are also elements of the other.

. The federal robbery charge, however, is not “the same” as
any of the state gun- and drug-possession charges. The robbery statute, 18 U.S.C. §
1951(a), requires an interstate-commerce nexus; the Pennsylvania statutes Berry was
charged with violating do not. See United States v. Betancourt, 

, 75 (3d Cir.
1997) (holding that interstate-commerce connection is valid element for comparison
under the Blockburger test). The Pennsylvania statutes each require possession of certain
property (guns or drugs); the robbery statute does not, see § 1951(a) (providing that an
attempt to rob, which does not entail successfully obtaining any items of value, violates
the statute).

                                             14
interrogation, then, like Monek’s, was constitutionally adequate.4

                                             F.

       Berryman argues that he should not have been adjudged guilty of the violation of

18 U.S.C. § 922(g)(1) charged in count eight of the superseding indictment, because this

charge was submitted to the jury as “count seven” after the District Court renumbered that

count (and also renumbered the superseding indictment’s “count seven” to “count six”)

after it dismissed the superseding indictment’s “count six.” Berryman did not object

when the District Court renumbered the counts before giving the case to the jury, see

Supp. App. 541, 547, he did not object when the prosecutor referred to the renumbered

counts using their new numbers, see Supp. App. 543, 545, and he did not object when the

jury returned its verdict of guilty on those renumbered counts, see Supp. App. 556-57.

Rather, he made this argument for the first time in a post-verdict motion. The District

Court rejected it. We review the District Court’s ruling, then, for plain error. 

(3d Cir. 1989).

       Berryman’s position has no merit. He does not argue that, apart from the

renumbering, the counts on which he was sentenced were different from those on which

he was convicted. That is the end of the matter. See United States v. Ellison, 

       Even if the right had attached prior to Shelton’s interrogation, there was no Sixth
Amendment violation. When Shelton interrogated Berryman concerning the robbery,
Berryman was not represented by counsel on that charge. He did not invoke his Sixth
Amendment right. Rather, he waived the right, and he does not argue here that his waiver
was anything other than knowing and voluntary.

                                            15
128, 135-36 (7th Cir. 1977) (holding that any error resulting from renumbering counts of

indictment before giving case to jury is harmless – and thus, a fortiori, not plain – where

“apart from the different renumbering, the counts on which the jury convicted [the

defendant] were identical to the counts under which he was sentenced”).

                                             G.

       Berryman argues that his convictions on counts four and five, for violations of 18

U.S.C. § 922(g)(1), and counts seven and eight, for violations of § 922(j), should be set

aside because those statutes are unconstitutional. Berryman did not make this claim in

any pre-trial motion or during trial. He advanced it for the first time in a post-verdict

motion. The District Court rejected it. We review that ruling for plain error. 

.

       Berryman claims that § 922(g)(1) and (j) exceed Congress’s Commerce Clause

power because they criminalize possession of “an object which may or may not have

traveled at some time in interstate commerce . . . .” Appellant’s Br. at 53. Berryman’s

characterization of these provisions is incorrect; each by its terms requires a definite

interstate-commerce nexus. We have held that § 922(g)(1), so construed, is

constitutional. United States v. Singletary, 

, 205 (3d Cir. 2001). Subsection

(j) incorporates materially identical interstate-commerce language, so it too passes

Commerce Clause muster.

                                             H.

       Finally, Berryman argues that the evidence adduced at trial was insufficient to

                                             16
support his convictions. He notes, however, that this claim does not stand alone. Rather,

it “is really cumulative of the other issues presented . . . .” Appellant’s Br. at 13.

Accordingly, he puts forth no independent argument in support of his insufficiency claim.

He states only that the evidence was insufficient “[i]n light of the evidentiary problems

and missing Brady material . . . .” Appellant’s Br. at 13. Because we rejected his

arguments concerning all of the “other issues presented,” then, we reject this challenge to

the sufficiency of the trial evidence.5

                                              III.

       Berryman argues that his sentence was unreasonable because the District Court

incorrectly calculated his United States Sentencing Guidelines criminal history score. He

also argues that the sentence was unreasonable because the District Court – and not the

jury – found facts that increased Berryman’s maximum sentence. We review the District

Court’s sentence for reasonableness, evaluating both its procedural and substantive

underpinnings using a deferential abuse-of-discretion standard. Gall v. United States, 

, 594 (2007).

       Berryman first argues that the District Court should have added only one point

based upon his prior conviction, not three, and therefore should have computed his total


       5
        We note that, were he actually to pursue a freestanding insufficiency claim, we
would “view the evidence in the light most favorable to the Government, and will sustain
the verdict if any rational trier of fact could have found the essential elements of the
crime[s] beyond a reasonable doubt.” United States v. Dent, 

, 187 (3d Cir.
1998) (quoting United States v. Voigt, 

, 1080 (3d Cir. 1996)) (internal
quotation marks omitted). We then would reject the claim.

                                              17
criminal history score as 12, not 14. This claim is meritless. Berryman was a career

offender and has not challenged that designation. Therefore, his criminal history category

is VI regardless of his score. See United States Sentencing Guidlines § 4B1.1(b) (“A

career offender’s criminal history category in every case under this subsection shall be

Category VI.”).

       He next argues that the facts supporting the brandishing-a-weapon component of

his § 924(c)(1)(A)(ii) offense were improperly found by the District Court and had to be

found by the jury. This claim, too, is meritless. The Supreme Court has squarely held

that, with respect to § 924(c)(1)(A)(ii), “[t]he statute regards brandishing . . . as [a]

sentencing factor[] to be found by the judge, not [an] offense element[] to be found by the

jury.” Harris v. United States, 

, 556 (2002).

                                              IV.

       For the above reasons, we will affirm the District Court’s judgment of conviction

and sentence.




                                               18