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


4-16-2009

USA v. Bilial Shabazz
Precedential or Non-Precedential: Precedential

Docket No. 08-2145




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                                        PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                     No. 08-2145


          UNITED STATES OF AMERICA

                          v.

                 BILIAL SHABAZZ,

                               Appellant


      Appeal from the United States District Court
        for the Eastern District of Pennsylvania
      (D.C. Criminal Action No. 2-06-cr-00710-1)
     District Judge: Honorable Eduardo C. Robreno


      Submitted Under Third Circuit LAR 34.1(a)
                  March 24, 2009


Before: RENDELL, AMBRO, and JORDAN, Circuit Judges

            (Opinion filed: April 16, 2009)
Mark S. Greenberg, Esquire
Lacheen, Wittles & Greenberg
1429 Walnut Street, Suite 1301
Philadelphia, PA 19102-0000

       Counsel for Appellant

Laurie Magid
  Acting U.S. Attorney
Robert A. Zauzmer
  Assistant U.S. Attorney, Chief of Appeals
Karen S. Marston, Esquire
  Assistant U.S. Attorney
Office of the United States Attorney
615 Chestnut Street, Suit 1250
Philadelphia, PA 19106-0000

       Counsel for Appellee


                 OPINION OF THE COURT


AMBRO, Circuit Judge

       A jury found Bilial Shabazz guilty of one count of
conspiracy to commit Hobbs Act robbery, in violation of 18
U.S.C § 1951(a), one count of Hobbs Act robbery, in violation
of 18 U.S.C. § 1951(a), and one count of using a firearm during
or in relation to a crime of violence, in violation of 18 U.S.C
§ 924(c). Shabazz was sentenced to a total of 360 months’


                               2
imprisonment. He now challenges his conviction and sentence.1
We affirm both.

              I. Facts and Procedural History

       A grand jury in the Eastern District of Pennsylvania
returned a three-count indictment against Shabazz, Christopher
Young, Steven Patton and Bruce Johnson, all in connection with
the December 3, 2006 robbery of a Wal-Mart at Roosevelt
Boulevard in Philadelphia. Patton, Johnson and Young each
pled guilty, while Shabazz went to trial.

       The robbery was planned by Patton, an assistant manager
at the Roosevelt Boulevard Wal-Mart, and Johnson, who had
previously worked with Patton at that store, but at the time was
an assistant manager at a Wal-Mart in Cherry Hill, New Jersey.
They chose to target the Roosevelt Boulevard store because they
knew that, during the holiday-shopping season, the store would
have large amounts of cash in its safe. According to both Patton
and Johnson, Johnson recruited his brother-in-law, Shabazz, to
carry out the robbery, and Shabazz later recruited Young.
Patton claimed that he first met Shabazz at a McDonald’s near
the Roosevelt Boulevard store shortly before the robbery, where
Johnson, Shabazz and Patton met to complete the plan.
According to Patton, they decided that Patton would let Shabazz
and his accomplice into the store around 2:00 a.m., when most
of the overnight employees would be out on their lunch break,


       1
        The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have jurisdiction under 18 U.S.C. § 3742(a) and 20
U.S.C. § 1291.

                               3
and that Patton would be taken to the safe room and tied up to
make it look like he was a victim of the robbery.

       At approximately 2:15 a.m. on December 3, Patton let
two men into the store, whom he later identified as Shabazz and
Young. As Patton led them to the safe room, they encountered
Richard Tate, a store employee, who had come to the front
register to ask Patton to cash him out. The two robbers then led
Patton and Tate to the safe room at gunpoint. Once there, Patton
was ordered to open the safe, while Tate was ordered to lie on
the floor face down and then was bound with duct tape. After
the safe was opened, Patton was also ordered to the floor and his
hands were duct-taped. The two robbers left the store with
approximately $351,563 in cash.

       Patton then freed both himself and Tate and called the
police. Initially, Patton presented himself as a victim of the
robbery. After viewing the surveillance video, which showed
him opening the store’s door to allow the two men in, Patton
admitted his involvement in the crime. He directed the police to
Johnson, who in turn implicated Shabazz and Young. On
February 1, 2007, Shabazz was arrested in Miami, Florida.
While he was being processed at the Miami-Dade County Jail,
Detective Wayne McCarthy found $2,400 in cash in Shabazz’s
wallet and remarked: “That’s a lot more money than I carry
around in my pocket.” Shabazz allegedly replied: “Well, there’s
plenty more where that came from.”

        In March 2007, Shabazz filed a pretrial motion to have
that comment suppressed on the ground that no Miranda
warning had been issued prior to Detective McCarthy’s
initiating a conversation with him about the amount of money in

                               4
his wallet. The District Court denied the motion, holding that
the statement was not the product of a custodial interrogation.

        Shabazz’s trial began on August 14, 2007. Patton
testified about planning the robbery with Johnson and Shabazz,
and about Shabazz’s alleged actions in carrying it out. During
his testimony, the Government introduced footage of the
robbery from the store’s surveillance cameras, which Patton
narrated over Shabazz’s objection. The footage showed the man
Patton identified as Shabazz walking toward the store from the
parking lot, entering the store, grabbing Tate by the store
register and putting a gun to his neck, shoving Tate to the
ground in the safe room and putting a gun to his head, taking
money from the safe and putting it in a trash bag and his
clothing, and leaving the safe room with the money. In addition,
Patton identified (also over objection) Shabazz as the man
holding a gun in a still picture taken from the robbery.

        Johnson testified about coming up with the idea for the
robbery with Patton and then recruiting Shabazz to execute it.
Johnson described receiving multiple phone calls from Shabazz
on the day of the robbery, including one shortly before it took
place, during which Shabazz allegedly informed Johnson that he
(Shabazz) was just outside the store and ready to be let in by
Patton. Johnson also testified that he spoke with Shabazz twice
after the robbery and that, just before he was arrested, he made
plans to meet Shabazz at a Philadelphia gas station to discuss
dividing up the proceeds.

        The Government also called Tate to the stand. He
testified that the robbery had left him “discombobulated,” that
he did not want further involvement in the matter, and that he

                               5
was only testifying because he had been served with a subpoena.
He described being shown two different photo arrays by
investigating officers. He explained that he was unable to
identify anyone in the first array, but that he circled Shabazz’s
photograph in the second, though when he did so he was not
quite sure “if that was the person.” Detective James Severa,
who showed Tate the second array, testified that Tate identified
Shabazz’s photograph without hesitation.

        Detective McCarthy testified that Shabazz had $2,400 in
cash on him when he was processed at the Miami-Dade County
Jail, and that, after Detective McCarthy made the remark about
the money, Shabazz commented that “there’s plenty more where
that came from.”

       The Government also called Ronneka Surreal Rankin, a
woman with whom Shabazz spent time while he was in Miami.
She testified that, during their relationship, Shabazz asked her
approximately five times to retrieve wire transfers sent to him
from Philadelphia, each ranging between $1,000 and $5,000.

       Finally, the Government introduced cell phone records
that showed numerous calls between Shabazz’s cell phone
number and Johnson’s in the days before and after the robbery.
One call, which had been made from Shabazz’s phone to
Johnson’s just prior to the robbery, was traced to a cell phone
tower near the Roosevelt Boulevard store.

       The jury began its deliberations at approximately 12:25
p.m. on August 17. Just over an hour later, the jury sent a note
to the District Judge with six requests, including a request to
read the transcript of Tate’s testimony. The Judge denied that

                               6
request, following an objection by the Government. The other
five requests were granted,2 and at 2:50 p.m. the jury was sent
back to continue its deliberations. Twenty-five minutes later,
the Judge informed the jury that he had changed his position
with regard to the reading back of Tate’s testimony and gave it
the option of obtaining that testimony. Two minutes later, the
jury sent a note to the Judge indicating that it was withdrawing
its initial request. At 3:39 p.m., the Court reconvened, having
been informed that the jury had reached a verdict. The jury
found Shabazz guilty on all three counts.

       Shabazz’s presentence report gave him a Sentencing
Guidelines range of between 360 months to life. The basis for
this recommendation was § 4B1.1(c) of the Sentencing
Guidelines, which provides a recommended range of at least 360
months to life for any career offender convicted under 18 U.S.C
§ 924(c) (use of a firearm during or in relation to a crime of
violence) who is not eligible for an acceptance-of-responsibility
reduction. U.S.S.G. § 4B1.1(c)(2)(B) & (c)(3). Shabazz
objected to the recommendation, arguing that it exceeded the
statutory maximum for the firearm conviction. The District
Court rejected the challenge, and, on April 16, 2008, imposed a
sentence of 360 months’ imprisonment. Shabazz timely
appealed.



       2
         Those other requests were for the elements of the three
counts, the Wal-Mart surveillance video, the activity summary
on the phone linked to Shabazz, a letter Shabazz wrote to
Rankin after being apprehended in Miami, and the photo arrays
shown to Tate.

                               7
                         II. Discussion

       Shabazz makes four arguments on appeal: (1) the jury’s
request to read back Tate’s testimony should have been granted
when it was initially made; (2) Detective McCarthy’s testimony
about what Shabazz allegedly said while being processed in
Miami should have been suppressed; (3) Patton should not have
be allowed to identify Shabazz in the surveillance video footage
and the still photo introduced during his testimony; and (4) his
sentence exceeded the statutory maximum for the firearms
conviction on which it was based.

       A. The Jury’s Request for Tate’s Testimony

        Shabazz asserts that the District Court erred in initially
denying the jury’s request to read back Tate’s testimony.3 We
agree that the jury was entitled to have access to the testimony.
While “[a] trial court has broad discretion in deciding whether
to accede to a jury’s request for a reading of testimony[,]” we
have required that the denial of such a request be grounded in
either concerns about slowing down the trial or concerns about
causing the jury to place undue emphasis on the requested
portion of the trial transcript. United States v. Zarintash, 

, 69–70 (3d Cir. 1984); see also United States v. Bertoli,

, 1400 (3d Cir. 1994). Neither of those worries
was implicated here. According to the District Court’s own
estimation, Tate’s testimony ran no longer than 25 minutes.


       3
         We review for abuse of discretion a district court’s
denial of a request for a reading of testimony. United States v.
Zarintash, 

, 69–70 (3d Cir. 1984).

                                8
And, as Shabazz notes, Tate’s testimony was not peripheral, as
Tate was both the only witness to link Shabazz directly to the
robbery who was not testifying in connection with a plea
agreement and the only one who expressed some uncertainty
about his identification. See United States v. Rabb, 

, 1014 (3d Cir. 1971) (explaining that concerns are
misplaced that the jury will put undue influence on the portions
of the transcript the jury asked to read back when the testimony
requested is “crucial to [the] determination of . . . guilt or
innocence”). Thus, we concur with the District Court’s
reconsidered determination that the jury’s request to read back
Tate’s testimony should have been granted.

        As might be guessed, however, any such error was cured
when the Court reversed itself and gave the jury the option of
reading Tate’s testimony. Shabazz contends that this reversal
“was too little[,] too late.” Shabazz’s Br. 17. We disagree. The
Court ultimately gave the jury what it requested—access to
Tate’s testimony. It is true that the jury reached its verdict not
long after it informed the Court that it no longer wished to
consult Tate’s testimony. But that does not change that it had
the opportunity, prior to reaching that verdict, to determine
whether reading Tate’s testimony would aid its deliberations. In
this context, the harm, if any, caused by the District Court’s
initial denial of the jury’s request was undone by its subsequent
and prompt reversal.

      B. Shabazz’s Statement to Detective McCarthy

       Shabazz next argues that the statement he allegedly made
to Detective McCarthy about having “plenty more” cash than
the $2,400 found in his wallet should have been suppressed, as

                                9
it was the product of a custodial interrogation and Shabazz had
not yet been advised of his Miranda rights.4 See Miranda v.
Arizona, 

, 477–79 (1966) (providing that
statements obtained during a custodial interrogation are
inadmissible under the Fifth Amendment of our Constitution if
the defendant was not informed both of the right to counsel and
the right to remain silent). The District Court held that, while
Shabazz was certainly in custody when he had the exchange
with Detective McCarthy about the money in his wallet, that
exchange did not amount to an interrogation, as (according to
the District Court) “the statement [in question] was made while
bantering or in casual conversation with an agent with
compulsion not being included.” Shabazz argues that the
exchange constituted the “functional equivalent” of an
interrogation because Detective McCarthy’s comment about the
amount of money Shabazz was carrying around with him was
“reasonably likely to elicit an incriminating response.” Rhode
Island v. Innis, 

, 301 (1980).

      It is unnecessary to reach the issue of whether Shabazz’s
statement was the product of a custodial interrogation. That is
because, even were we to conclude that the District Court erred
in admitting the statement, Shabazz would still not be entitled to
a new trial. The admission of unconstitutionally obtained


       4
         We review a denial of a motion to suppress “for clear
error as to the underlying facts, but exercise plenary review as
to its legality in light of the [C]ourt’s properly found facts.”
United States v. Lafferty, 

, 298 (3d Cir. 2007)
(quoting United States v. Givan, 

, 458 (3d Cir.
2003)).

                               10
evidence does not warrant reversing a conviction where “the
prosecution can show that the evidence is so overwhelming that
it is beyond a reasonable doubt that the verdict would have been
the same without the improper evidence.” United States v.
Price, 

, 720 (3d Cir. 1994) (citation and internal
quotation marks omitted).

        That standard is easily met here. Shabazz’s alleged
admission to Detective McCarthy played only a minor role in
the Government’s case, essentially reinforcing Rankin’s
testimony that Shabazz had access to a lot of money while he
was in Miami. The heart of the Government’s case was the
testimony of Patton, Johnson and Tate, the footage from the
surveillance video, and the cell phone records linking Shabazz’s
phone to Johnson’s (including one call from the area of the
Roosevelt Boulevard Wal-Mart just prior to the robbery). That
evidence overwhelmingly pointed to Shabazz’s guilt. Thus, any
error flowing from the denial of the suppression motion and the
admission of Detective McCarthy’s testimony was harmless.

           C. Patton’s Identification Testimony

       Shabazz also argues that the District Court erred in
allowing Patton to identify him as the man depicted in both the
surveillance video of the robbery and a still photo taken from
that video.5 Shabazz contends that, because he was present in


       5
         We review a district court’s “decision to admit or
exclude evidence for abuse of discretion.” United States v.
Bobb, 

, 497 (3d Cir. 2006). “However, to the
extent the District Court’s admission of evidence was based on

                              11
the courtroom, the jury was capable of determining for itself
whether he was the man in the surveillance footage and the still
photo. Therefore, he argues, Patton’s identification testimony
was inadmissible under Federal Rule of Evidence 701, which
permits a lay witness to testify in the form of “opinions or
inferences” only when such testimony is both “rationally based
on the perception of the witness,” and “helpful to . . . the
determination of a fact in issue.” 6 Fed. R. Evid. 701 (emphasis
added).

        This concern that Patton’s testimony drew inferences that
were properly the jury’s to make is misplaced. Patton testified
as a fact witness, not as a witness providing opinions and
inferences of the type that potentially encroach on the province
of the jury. To be sure, the distinction between fact testimony
(on the one hand) and opinions and inferences (on the other) is
not one that can be drawn with surgical precision. See 3


an interpretation of the Federal Rules of Evidence, the standard
of review is plenary.” 

contends that
Shabazz never objected to Patton being allowed to narrate the
footage from the surveillance video, and thus that the District
Court’s decision to allow that testimony should be reviewed for
plain error. Gov’t’s Br. 40. The record does not support the
Government’s contention, however, and we will review for
abuse of discretion.
       6
         In addition, the testimony must genuinely be lay
testimony, “not based on scientific, technical, or other
specialized knowledge within the scope of [Federal] Rule [of
Evidence] 702.” Fed. R. Evid. 701.

                               12
Christopher B. Mueller and Laird C. Kirkpatrick, Federal
Evidence § 7:1 (3d ed. 2007), at 747 (“All testimony necessarily
reflects not only facts that the witness saw, but also opinions or
inferences in the form of recollection, evaluation, and thoughts
about what he saw.”). Nonetheless, in the identification context
at least, Rule 701 is typically applied where a witness is asked
to identify the defendant in an incriminating photo or video
based simply on general familiarity with the defendant’s
appearance. See, e.g., United States v. Dixon, 

,
544–46 (6th Cir. 2005); United States v. Pierce, 

,
773–75 (11th Cir. 1998); United States v. Jackman, 

,
4–6 (1st Cir. 1995); United States v. LaPierre, 

,
1465 (9th Cir. 1993); United States v. Towns, 

, 445
(7th Cir. 1990); United States v. Allen, 

, 935–36
(4th Cir. 1986), vacated on other grounds, 

(1987).

       Yet that is not what occurred here. Patton identified
Shabazz in images taken from a surveillance video of events in
which Patton himself took part. Indeed, the District Court
expressly limited Patton’s narration of the video to those
incidents to which Patton was an eyewitness, excluding him
from discussing what was happening in those portions of the
video that depicted actions to which Patton’s back was turned at
the time. Accordingly, Patton’s testimony was admissible as
ordinary fact testimony.




                               13
                   D. Shabazz’s Sentence

        Finally, Shabazz challenges his sentence.7 Although
Shabazz was convicted for three separate offenses, because of
his status as a career offender under § 4B.1 of the Sentencing
Guidelines, the Guidelines range of 360 months to life
imprisonment was based just on his § 924(c) conviction (use of
a firearm during or in relation to a crime of violence).8
Shabazz’s sentence of 360 months’ imprisonment was therefore
at the lowest end of the applicable Guidelines range.


       7
        As Shabazz is asking us to review the District Court’s
legal conclusion that 18 U.S.C § 924(c) carries a maximum
sentence of life imprisonment, our review is plenary. United
States v. Hoffecker, 

, 153 (3d Cir. 2008).
       8
         Under § 4B1.1(c)(2), when a defendant is convicted of
multiple counts, including at least one conviction for either 18
U.S.C. § 924(c) or § 929(a), the Guidelines range is the greater
of either “(A) the [G]uideline range that results by adding the
mandatory minimum consecutive penalty required by the 18
U.S.C. § 924(c) or § 929(a) count(s) to the minimum and the
maximum of the otherwise applicable [G]uideline range
determined for the count(s) of conviction other than the 18
U.S.C. § 924(c) or § 929(a) count(s),” or “(B) the [G]uideline
range determined using the table in subsection (c)(3).” U.S.S.G.
§ 4B1.1(c)(2)(A)–(B). Under the table found at § 4B1.1(c)(3),
the Guidelines range where there is no reduction for acceptance
of responsibility is 360 months to life imprisonment, which, in
Shabazz’s case, is greater than the range as calculated under
§ 4B1.1(c)(2)(A).

                              14
       Shabazz appears to want to challenge his sentence on the
basis of Apprendi v. New Jersey, 

(2000), which
held that “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” 

He argues that, because he was
sentenced specifically under § 924(c)(1)(A)(ii) (which applies
when a gun is brandished in connection with a crime of
violence), and because the issue of whether he actually
brandished the gun was not presented to the jury, his sentence
was improper under Apprendi.

        This argument misses the mark. Shabazz’s suggested
range under § 4B.1 of the Sentencing Guidelines was based on
a generic § 924(c) conviction, not a conviction for specifically
brandishing a gun in connection with a crime of violence. See
U.S.S.G. § 4B1.1(c)(2)(B) & (c)(3). Moreover, even if that
were not the case, the effect of the finding that Shabazz
brandished a gun during the robbery was, as noted in further
detail below, to alter the statutory minimum for the offense, not
the statutory maximum. See Harris v. United States, 

, 554 (2002).9 As such, the Supreme Court has held that
§ 924(c)(1)(A) treats brandishing “as [a] sentencing factor[. . .]
to be found by the judge, not [an] offense element[. . .] to be
found by the jury.” 

Thus, this challenge fails.


       9
         Shabazz describes Harris as a “plurality decision.”
Shabazz’s Br. 25. However, the portion of Harris relevant to
whether the brandishing finding increased the statutory
maximum for Shabazz’s offense—Part II—was joined by a
majority of the Court.

                                 15
        Shabazz is better seen not as making an Apprendi
argument, but as simply challenging his suggested Guidelines
range of 360 months to life imprisonment on the ground that a
§ 924(c) conviction does not carry a statutory maximum of life
imprisonment.10             The relevant portion of
§ 924(c)—§ 924(c)(1)(A)—does not contain an express
statutory maximum. Rather, it provides different statutory
minimums depending on whether the gun was merely carried
(five years), brandished (seven years), or discharged (ten years).
18 U.S.C § 924(c)(1)(A)(i)–(iii). Harris did not settle the issue
of the statutory maximum for a § 924(c)(1)(A) conviction,
though the majority did note that “[s]ince [§ 924(c)(1)(A)’s]
subsections alter only the minimum, the judge may impose a
sentence well in excess of seven years, whether or not the
defendant brandished the 

(emphasis
added). This conclusion was echoed by the dissent, which, in
supporting its position that a finding that the defendant
brandished a firearm must be made by a jury, explained that
such a finding changes the “penalty range for a conviction”
under § 924(c)(1)(A) from “five years to life in prison” to
“seven years to life imprisonment.” 

(Thomas, J.,
dissenting).

       The Court of Appeals for the Fifth Circuit has held that,
in setting out a statutory minimum, but not a statutory
maximum, “Congress . . . implicitly authorized district courts to


       10
          At the District Court, Shabazz objected to the
presentence investigation report’s designation of life
imprisonment as the statutory maximum for his § 924(c)
conviction. This issue was thus preserved.

                               16
impose sentences under § 924(c)(1)(A)(ii) in excess of seven
years and up to a maximum of life imprisonment.” United
States v. Sias, 

, 246 (5th Cir. 2000). Every other
Court of Appeals to address the issue directly has come to this
same conclusion.11 See United States v. Johnson, 

,
798 (2d Cir. 2007); United States v. Dare, 

, 642
(9th Cir. 2005); United States v. Avery, 

, 1170
(10th Cir. 2002); United States v. Cristobal, 

, 147
(4th Cir. 2002); United States v. Sandoval, 

, 551


       11
          Shabazz cites one case, United States v. Jones, 

(7th Cir. 2005), that appears to depart from this
consensus. There, the Court noted, with respect to a defendant
convicted of both § 924(c)(1)(A)(iii) (discharging a gun in
connection with a crime of violence) and 18 U.S.C. § 2113(a)
(bank robbery), that “the jury’s verdict authorized the judge to
impose any sentence up to the maximum of twenty years in
prison.” 

(emphasis added). But, to the
extent the Court implied that the maximum sentence for a
§ 924(c)(1)(A) conviction is twenty years, it did so in a dictum.
The issue addressed in Jones was the same one addressed in
Harris—whether a fact that alters the statutory minimum for an
offense must be found by a jury. See Jones, 

–32.
It was not the one we are addressing here—the statutory
maximum for a § 924(c)(1)(A) conviction. On that issue, the
Court of Appeals for the Seventh Circuit’s answer can be found
in United States v. Sandoval, 

(7th Cir. 2001),
where it held that “convictions under § 924(c)(1)(A) carry a
statutory maximum sentence of life imprisonment.” 

As such, Jones provides no reason to dissent from the position
taken by the majority of our sister Courts of Appeals.

                               17
(7th Cir. 2001); United States v. Pounds, 

, 1319
(11th Cir. 2000). We are persuaded that the express inclusion
of a minimum sentence, but not a maximum sentence, indicates
an intention to make life imprisonment the statutory maximum.
Cf. United States v. Williams, 

, 304 (3d Cir. 1989)
(explaining that “[w]hen Congress [in 18 U.S.C. § 924(e)(1)]
provided for ‘imprisonment of not less than fifteen years’” for
anyone convicted of violating § 922 who had previously been
convicted of three violent felony offenses, “it meant a maximum
of life”).

       Accordingly, we join our colleagues on other Courts of
Appeals in holding that the maximum sentence for a
§ 924(c)(1)(A) conviction is life imprisonment. We thus affirm
the District Court’s sentence of 360 months based on the
suggested Guidelines range of 360 months to life imprisonment.

                       *   *   *    *   *

       We thus affirm both Shabazz’s conviction and sentence.




                               18