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1. United States v. Shavers, 2012 U.S. App. LEXIS 18108

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United States v. Shavers

United States Court of Appeals for the Third CircuitAugust 27, 2012, Filed

No. 10-2790 No. 10-2931 No. 10-2971

Reporter: 2012 U.S. App. LEXIS 18108

(Crim. Nos. 08-01616-001, 08-0161-002, 08-0161-003) District Judge: Honorable J. Curtis

UNITED STATES OF AMERICA v. GLORI-OUS SHAVERS, a/k/a G, a/k/a G-Bucks, a/k/aJulious Colzie, a/k/a Glorious Grand GloriousShavers, Appellant UNITED STATESOF

AMERICA v. JERMEL LEWIS, a/k/a STAR,a/k/a PR-STAR, a/k/a P Jermel Lewis, Appel-lant UNITED STATESOF AMERICA v. AN-DREW WHITE, Appellant

Notice: Decision text below is the first avail-able text from the court; it has not been editori-ally reviewed by LexisNexis. Publishers edi-torial review, including Headnotes, CaseSummary, Shepards analysis or any amend-ments will be added in accordance with Lexis-Nexis editorial guidelines.

Core Terms

robbery, identification, interstate commerce,district court, sentence, official proceedings,perpetrators, commerce, the Hobbs Act, prison,speakeasy, reliability, nexus, conversation, postoffice, show-up, telephone call, prejudicial,privacy, supervised release, witness tampering,quotation marks, firearms, misidentification,eyewitness, mistrial, array, impermissibly,

customers, telephone

Opinion

[*1]

On Appeal from the United States DistrictCourt for the Eastern District of Pennsylvania

Joyner

Argued March 19, 2012

_________________

Before: RENDELL, FISHER, and CHA-GARES, Circuit

Judges.

(Filed: August 27, 2012)

2

Keith M. Donoghue, Esq. (Argued) Robert Ep-stein, Esq.

Kai N. Scott, Esq.

Federal Community Defender Office for theEastern District of Pennsylvania 601 WalnutStreet

The Curtis Center, Suite 540 West Philadel-phia, PA 19106

Attorneys for Appellant Glorious Shavers

Paul J. Hetznecker, Esq. (Argued)

Suite 911

1420 Walnut Street

Philadelphia, PA 19102

Attorney for Appellant Jermel Lewis

Carina Laguzzi, Esq.


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Page 2 of 292012

Laguzzi & Associates

1500 John F. Kennedy Boulevard

Suite 200


Attorney for Appellant Andrew White

Robert A. Zauzmer, Esq. (Argued)

Arlene D. Fisk, Esq.

Office of United States Attorney

615 Chestnut Street

Suite 1250


Attorneys for Appellee

3

__________________

OPINION

__________________

CHAGARES, Circuit Judge.

U.S. App. LEXIS 18108, *1

Philadelphia. The house owner, Jeanette Ketch-more (Jeanette), had for several years runan unlicensed bar, orspeakeasy, out of herbasement. At trial, she described her activity asa party at which family, friends, and acquain-tances would socialize and occasionally play

cards. The speakeasy was not open to the gen-eral public. Jeanette purchased alcohol at a re-tail store in Philadelphia and sold it withouta license to her guests for $3-$4 per drink. Thebrands of alcohol sold included some that are

4

manufactured outside of Pennsylvania such asHennessy cognac, Gordons [*3] gin, Sea-grams gin, and Taylors port wine.

When the appellants entered Jeanettes houseon November 8, 2005 at 5:30 a.m., six to sevenpeople were in the first floor dining room play-ing cards. The parties dispute whether alco-hol sales had ceased for the night. The three ap-pellants entered the residence displayingfirearms and wearing dark-colored hoodedsweatshirts with the hoods drawn tightly aroundtheir faces. The appellants forced the patronsinto the basement and ordered them to lie downon the floor. One of the appellants went tothe second floor and forced Jeanettes son,

Rickey Ketchmore (Rickey

), to come down-This is a consolidated appeal by three codefen-

dants, Glorious Shavers, Andrew White, andJermel Lewis (collectively referred to as theap-pellants), who were convicted [*2] of rob-bery affecting interstate commerce, conspiracyto commit robbery affecting interstate com-merce, witness tampering, and using and carry-ing firearms during and in relation to a crime ofviolence. We will vacate Shaverss andWhites witness tampering convictions andShaverss eight-year term of supervised re-

lease. We will uphold the three appellants con-victions on all other counts and will affirmLewiss sentence. Finally, we will remand forthe District Court to resentence Shavers andWhite in accordance with this opinion.

I.

This case arose out of a robbery on November8, 2005 at a single-family house in North

stairs to join the patrons. The appellants thenwent through everyones pockets and stole twocell phones, a wallet, and approximately$121 in cash. No money was stolen directlyfrom Jeanette, however. The appellants alsorummaged through the basement and first floorof the house. Jeanette testified that the appel-lants went through her refrigerator and kept ask-ing where theweed (marijuana),wet(PCP), andoil (heroin or PCP) was.1 Joint Ap-pendix (JA) 1168-69, 1217. They also

asked Jeanette where

the money

was. Id. at1167.

When the police arrived, the three [*4] appel-lants ran out of the house and down thestreet. White was seen tossing a silver gun ashe ran. White and Shavers were arrested in the

1 Before trial, the Government moved forleave to file a superseding indictment adding


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Page 3 of 292012 U.S. App. LEXIS 18108, *4

an allegation that the appellants attempted tosteal drugs from Jeanette. The District Court de-nied that request due to discovery violations anddid not permit the admission of evidencesupporting that theory.

5

area soon thereafter. White had two cellphones that were stolen from the speakeasy pa-trons and $49 in cash, including twenty-nineone-dollar bills. Shavers had three live shotgunshells in his pocket and $87 in cash, includ-ing sixty-two one-dollar bills. After the policeapprehended Shavers and White, they returnedto Jeanettes house and asked eyewitnesses Al-berto Vasquez and Brian Anderson whether theyrecognized the two men sitting in the police ve-

hicles. Vasquez and Anderson identified Shav-ers and White as two of the three assailants.Lewis was apprehended years later after an in-vestigation.

Shavers and White were originally chargedwith Pennsylvania offenses and kept in state cus-tody. On March 20, 2008, however, theUnited States Attorney charged them [*5] withrobbery affecting interstate commerce, in vio-lation of the Hobbs Act, 18 U.S.C. 1951(a)and 2, and using and carrying a firearm dur-

ing and in relation to a crime of violence, in vio-lation of 18 U.S.C. 924(c) and 2.2 On July10, 2008, a superseding indictment added Lewisto the first two counts, and also addedcharges against all three appellants of attemptsto intimidate, threaten, and/or corruptly per-suade a witness in an official proceeding, in vio-lation of the Victim and Witness ProtectionAct of 1982, 18 U.S.C. 1512(b)(1). The wit-ness intimidation charges were largely basedon telephone calls that the appellants con-ducted on state prison telephones in which theymade incriminating comments. On August 20,2009, the Government filed a second supersed-ing indictment adding additional witness tam-pering counts and a count of conspiracy to com-mit

2 The state charges were nolle prossed after

commencement of the federal prosecution.

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robbery in violation of the Hobbs Act againstall three appellants.

A joint trial of the three appellants commenced

on September 9, 2009 in theUnited States

Dis-trict Court for the Eastern District of Pennsylva-nia. After six days of testimony, [*6] the juryfound all three appellants guilty of the HobbsAct and 924(c) violations, and found Shav-ers and White guilty of three counts of witnesstampering each. Lewis was acquitted of all wit-ness tampering charges. After denying the appel-lants motions for judgments of acquittal, theDistrict Court sentenced Shavers to 144 monthsof incarceration with an eight-year term of su-pervised release, Lewis to 141 months of in-

carceration with five years of supervised re-lease, and White to 196 months of incarcerationwith five years of supervised release. Allthree sentences included a mandatory mini-mum consecutive term of eighty-four months onthe 924(c) count. The appellants filed atimely appeal raising ten arguments that we willaddress in turn.3

II. The Hobbs Act Convictions

A.

Shavers and White first contend that the Dis-trict Court erroneously instructed the jury that arobbery need only have a de minimis or poten-tial effect on interstate commerce in order toviolate the Hobbs Act. While the appellants

3 The District Court had jurisdiction over the

prosecution of this criminal action pursuant to 18U.S.C. 3231 and we have jurisdiction overthe appeal pursuant to 28 U.S.C. 1291 and

[*7] 18 U.S.C. 3742(a).

7

acknowledge that our controlling precedent fore-closes relief on this claim, they seek to pre-serve it for future review.

We exercise plenary review over a challenge tothe legal accuracy of jury instructions. Arm-strong v. Burdette Tomlin Meml Hosp., 438


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F.3d 240, 245 (3d Cir. 2006). The Hobbs Actprovides:

Whoever in any way or degree obstructs, de-lays, or affects commerce or the movement ofany article or commodity in commerce, by

robbery or extortion or attempts or conspires soto do, or commits or threatens physical vio-lence to any person or property in further-ance of a plan or purpose to do anything in vio-lation of this section shall be fined under thistitle or imprisoned not more than twenty years,or both.

18 U.S.C. 1951(a).Commerce is definedas

commerce within the District of Columbia, orany Territory or Possession of the United States;all commerce between any point in a State, Ter-ritory, Possession, or the District of Colum-bia and any point outside thereof; all com-merce between points within the same Statethrough any place outside such State; and allother commerce over which the United Stateshas jurisdiction.

Id. 1951(b)(3).

Due to the requirement [*8] that a Hobbs Act of-fenseobstructs, delays, or affects interstate

commerce,the reach

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of the Hobbs Act is coextensive with that of theCommerce Clause of the United States Con-stitution. United States v. Walker, 657 F.3d160, 179 (3d Cir. 2011) (quotation marks omit-ted). The Commerce Clause delegates to Con-gress the power[t]o regulate Commerce withforeign Nations, and among the severalStates, and with the Indian Tribes. U.S. Const.

art. I, 8, cl. 3. InUnited States

v. Lopez,which involved a challenge to the Gun-FreeSchool Zones Act of 1990, 18 U.S.C. 922(g)(1)(A), the United States Supreme Courtheld that there arethree broad categories ofactivity that Congress may regulate under theCommerce Clause:

(1)the use of the channels of interstate com-merce[;] (2)the instrumentalities of interstate

commerce, or persons or things in interstatecommerce, even though the threat may comeonly from intrastate activities[;] and (3)thoseactivities having a substantial relation to inter-state commerce. 514 U.S. 549, 558-59 (1995).The Lopez Court concluded that the posses-

sion of a gun in a local school zone did not fallinto any of those categories. In particular, theregulated [*9] activity did not have a substan-tial relation to interstate commerce because[t]he possession of a gun in a local school zone isin no sense an economic activity thatmight, through repetition elsewhere, substan-tially affect any sort of interstate commerce. Id.at 567.

The District Court in this case instructed thejury on the interstate commerce element as fol-

lows:

The third element that the Government mustprove beyond a reasonable doubt is that the De-fendants conduct affected or could have af-fected interstate commerce. Conduct affects in-terstate commerce if it in any way interferes

9

with[,] changes, alters the movement or trans-portation or flow of goods, merchandise, money

or other property in commerce between oramong the states. The effect can be minimal.

It is not necessary to prove that the Defendant in-tended to obstruct . . . delay or interfere[with] interstate commerce or that the purpose ofthe alleged crime was to affect interstate com-merce. Further, you do not have to decidewhether the affect on interstate commerce wasto be harmful or beneficial to a particular busi-ness or to commerce in general. You do not evenhave to find that there was an actual effect on

commerce. [*10] All that is necessary to provethis element is that the natural consequencesof the offense potentially caused an effect on in-terstate commerce to any degree, howeverminimal or slight.

JA 2016 (emphasis added). Shavers and Whiteargue that the District Courts instructionwas incorrect. They interpret Lopez as holdingthat Congress may regulate only conduct that


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substantially affects interstate commerce, andmay not regulate conduct that has a mere mini-mal or potential effect on interstate com-merce.

Our decisions have consistently and firmly re-

jected that argument. See, e.g., United States v.Urban, 404 F.3d 754, 766 (3d Cir. 2005)([W]e have already rejected the argument thatLopez and its progeny require proof of a sub-stantial effect on commerce in an individualcase in order to show a Hobbs Act viola-tion.). We have held instead

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that[i]f the defendants conduct produces anyinterference with or effect upon interstate com-

merce, whether slight, subtle or even potential, itis sufficient to uphold a prosecution under[the Hobbs Act]. United States v. Haywood,363 F.3d 200, 209-10 (3d Cir. 2004) (quotationmarks omitted). Areasonably probable effecton commerce, however minimal,[*11] is suf-ficient to meet the interstate commerce juris-dictional prerequisite under the Hobbs Act. Ur-ban, 404 F.3d at 763-64; see also UnitedStates v. Clausen, 328 F.3d 708, 711 (3d Cir.2003) ([T]he District Court did not err when itinstructed the jury that it need only find that

each robbery had a minimal effect on interstatecommerce.).

While we acknowledge that our long-standingprecedent sets a rather low hurdle for the Gov-ernment in Hobbs Act cases, we concludethat our interpretation of the interstate com-merce jurisdictional requirement is supportedby Supreme Court precedent. In Gonzales v. Ra-ich, the Supreme Court upheld the applicationof provisions of the Controlled Substances Act,21 U.S.C. 801 et seq., that criminalize the

manufacture, distribution, and possession ofmarijuana to intrastate growers and users ofmarijuana, holding that Congress possessesthepower to regulate purely local activitiesthat are part of an economic class of activi-ties that have a substantial effect on interstatecommerce. 545 U.S. 1, 17 (2005) (citingWickard v. Filburn, 317 U.S. 111, 128-29

(1942)). Under the aggregation theory relied

upon in Raich, the Commerce Clause supportsfederal [*12] regulation of an economicclass of activity that, in the aggregate, substan-tially affects interstate commerce. Id. at 17-19. That is the case even where an individualcrime on its own has only a minimal effect on in-

terstate commerce. Id. at 17 ([W]hen a gen-eral regulatory

11

statute bears a substantial relation to com-merce, the de minimis character of individual in-stances arising under that statute is of no con-sequence. (quotation marks omitted)). Even apotential effect may suffice. Id. at 35 (Scalia,J., concurring) (Most directly, the commercepower permits Congress not only to devise

rules for the governance of commerce betweenStates but also to facilitate interstate com-merce by eliminating potential obstructions,and to restrict it by eliminating potential stimu-lants.). We have opined thatthe Hobbs Actregulates quintessentially economic activitiesbecauseproperty crimes like robbery and ex-tortion are - unlike the possession of a gun in aschool zone or gender-motivated violence - in-disputably economic under our post- Lopezprecedents. Walker, 657 F.3d at 179. Like thestatute in Raich, the Hobbs Act regulates an

economicclass of activities that, in the aggre-gate, [*13] has a substantial effect on inter-state commerce. 545 U.S. at 17. The proper stan-dard for such activity, therefore, is exactly asthe District Court articulated it to the jury.

B.

The three appellants further assert that, even un-der the standard as the District Court ex-pressed it, the Government failed to present suf-ficient evidence that their crimes had an

adequate effect on interstate commerce to meetthe jurisdictional requirement in the HobbsAct. On challenges to the sufficiency of the evi-dence, we applya particularly deferential stan-dard of review. United States v. McGuire,178 F.3d 203, 206 n.2 (3d Cir. 1999). We do notweigh the evidence or assess the credibility ofthe witnesses. Id.[W]e must view the evi-dence in the light most favorable to the


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12

government, and will sustain the verdict if anyrational trier of fact could have found the es-sential elements of the crime beyond a reason-able doubt. Id. (quotation marks omitted).

Weafford deference to a jurys findings, anddraw all reasonable inferences in favor of thejury verdict. United States v. Moyer, 674F.3d 192, 206 (3d Cir. 2012) (quotation marksomitted). We will overturn the verdict onlywhen the record contains [*14] no evidence,regardless of how it is weighted, from which thejury could find guilt beyond a reasonabledoubt. Id.

As we have just discussed, the effect on com-merce of a Hobbs Act robbery may be shown by

areasonably probable effect on commerce,however minimal. Urban, 404 F.3d at 763-64.Where the robberyproduces any interfer-ence with or effect upon interstate commerce,whether slight, subtle or even potential, it is suf-ficient to uphold a prosecution under [theHobbs Act]. Haywood, 363 F.3d at 210 (quota-tion marks omitted). In United States v.Walker, for example, we held that the robbery ofa drug dealer whose drugs originated in an-other state had adirect nexus to interstatecommerce within the meaning of the Hobbs Act.657 F.3d at 182. By robbing a drug dealer,the defendantsdirectly [sought] to obstruct themovement of a commodity in commerce. Id.at 181 (quotation marks and alterations omit-ted).

In United States v. Haywood, whose facts areanalogous to the facts in this case, the defen-dant was convicted under the Hobbs Act ofrobbing a Virgin Islands tavern of approxi-mately $50-$70. 363 F.3d at 202. We held thatthe interstate commerce nexus was satisfiedbecause the [*15] tavern sold beer that wasmanufactured outside of the Virgin Islands. Id.at 211. Likewise, in United States v. Clausen,we

13

held that there was a sufficient nexus to inter-state commerce where the defendants had

robbed six businesses that purchased suppliesfrom other states, and/or had employees or cus-tomers from other states. 328 F.3d at 711-12.We underscored thatthe cumulative result ofmany Hobbs Act violations is a substantial ef-fect upon interstate commerce, and that sub-

stantial effect empowers Congress to regulatepursuant to the Commerce Clause. Id. at 711(quoting United States v. Robinson, 119 F.3d1205, 1215 (5th Cir. 1997)).4

4In some cases, we have also turned to thedepletion of assets theory to explain the nexusbetween the offense charged and interstatecommerce. In United States v. Urban, for in-stance, we reviewed the convictions of severalcity plumbing inspectors who had committedextortion, allegedly in violation of the Hobbs

Act, by accepting payments from the plumberswhose work they inspected. 404 F.3d at 759.We held that the Hobbs Act jurisdictional ele-ment was satisfied because the extortion de-pleted the assets that the plumbers had avail-able to purchase [*16] supplies made out-of-state. Id. at 761, 767. We explained thatthedepletion of assets of a person engaged in in-terstate commerce has at least a potential ef-fect on that persons engagement in interstatecommerce. Id. at 767.

That theory is not helpful here. While Rickeytestified that he saw one of the perpetrators hold-ing two bottles of liquor during the robbery, theGovernment told the jury in its closing argu-ment that those bottles did not leave thehouse. Thus, we do not rely on that testimonyas evidence that proceeds of the business werestolen.

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On this record, there was sufficient evidencefrom which a rational jury could find beyond a

reasonable doubt that Jeanette was running abusiness that had the requisite nexus to inter-state commerce. Although the speakeasy was nota licensed bar, it was selling alcohol and thepeople playing cards at the time of the robberywere its customers. Jeanette had been operat-ing the speakeasy foryears at the time of therobbery. JA 1157. In her testimony, Jeanetteagreed that the speakeasy was a business and in-


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dicated that she was making a profit. Id. at1156, 1163 ([W]e would purchase more beer,alcohol, and sometimes I might have enough[*17] to pay a bill to help me with my - send

my child to school.). Like in Haywood , Jea-nette sold alcohol that was imported from out of

state. Although that connection to interstatecommerce is admittedly indirect, it is no moreso than in the cases discussed above and itis a sufficient nexus to interstate commerce un-der our jurisprudence. See Urban, 404 F.3d at761, 767; Haywood, 363 F.3d at 211; Clausen,328 F.3d at 711-12; see also United States v.Elias, 285 F.3d 183, 189 (2d Cir. 2002) (hold-ing that the interstate commerce

The Government also avers that Whites andShaverss possession of large numbers of one-

dollar bills was consistent with the speak-easy prices of $3-$4 per drink and demon-strates that they absconded with business assets.The appellants respond that the possession ofmany one-dollar bills is more consistent with thevictims card playing. Either way, it was forthe jury to decide, based on the other evidence,which inference to draw from the denomina-tions. Our role is not to weigh the evidence withrespect to such factual questions so long asthere was some evidence presented from whicha reasonable jury could have found the essen-tial elements of the crime.

15

requirement [*18] for a Hobbs Act violation wasmet where the defendant robbed a New Yorkgrocery store that sold goods purchased inNew York but produced outside of New York be-cause the robberydepleted assets that mighthave been utilized to purchase out-of-stategoods); United States v. Mapp, 170 F.3d328, 336 n.13 (2d Cir. 1999) (holding that theHobbs Act jurisdictional nexus was met by therobbery of a delicatessen that sold goods pro-duced out of state, without mentioning whetherthe goods were purchased from out-of-stateor in-state suppliers).

There was also evidence here from which a ra-tional jury could find beyond a reasonabledoubt that the robbery had an effect, albeit slight

or potential, on interstate commerce. For in-stance, Jeanette testified that, after the robbery,she limited her guests to friends and familyand then shut down the operation completely afew months later. At least one speakeasy cus-tomer, Alberto Vasquez, chose not to return and

spend his money at the speakeasy after the rob-bery. From that evidence, a jury could reason-ably infer that the robbery caused the businessto close. Causing a business engaged in inter-state commerce to close has, or at least poten-tially has, [*19] an effect on interstate com-merce. See United States v. Jimenez-Torres , 435F.3d 3, 8 (1st Cir. 2006) (holding that the Gov-ernment can satisfy the Hobbs Act interstatecommerce requirement by showing that the rob-bery resulted in the closure of a business en-gaged in interstate commerce). Moreover, such

conduct, in the aggregate, would have a sub-stantial effect on interstate commerce. See Ra-ich, 545 U.S. at 17-19. Although this rob-bery was of a small business that purchasedalcohol sold in interstate commerce, if robber-ies occurred at and led to the closure of such es-tablishments on a large scale, the effect on in-terstate

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commerce would be substantial. For that rea-

son, the size of Jeanettes business and the factthat the appellants stole only $121 dollars, awallet, and two cell phones did not make thiscrime too small to satisfy the de minimis stan-dard. See Walker, 657 F.3d at 180 (holdingthat a robbery of $40 to $50 satisfied the deminimis standard); Haywood, 363 F.3d at 202,211 n.7 (holding that the de minimis thresh-old was met by the robbery of $50 to $70).

The appellants maintain that the facts here areanalogous to those in United States v. McGuire,

in which the defendant was [*20] chargedwith a violation of the federal explosives stat-ute, 18 U.S.C. 844(i), for the destruction of apersonal car that was used periodically by asmall intrastate catering business. 178 F.3d at211. We held that the Government failed to es-tablish the requisite nexus to interstate com-merce because there was no evidence as to howoften the car was used for the business or that


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a container of orange juice from another statethat was found in the car was related to the ca-tering business. Id. at 211-12. Thus,the jurywas required to guess at the connection be-tween the car and the catering business. Id.at 211. McGuire is easily distinguishable from

this case, where the jury was not left toguess at the connections between the victims ofthe robbery and the business, and between thebusiness and interstate commerce. Addition-ally, it was undisputed in McGuire that the ca-tering business did not lose money or custom-ers due to the defendants conduct. Id. at 211.Here, to the contrary, there was certainly ad-equate evidence from which a jury could inferthat the robbery was an attempt to - and didin fact - affect a business operating in inter-state commerce.

17

The appellants invite us to [*21] follow theCourt of Appeals for the Sixth Circuit and im-pose a heightened interstate commerce re-quirement when the victim of the alleged crimeis an individual rather than a business. InUnited States v. Wang, the Court of Appeals forthe Sixth Circuit held that the Hobbs Act in-terstate commerce nexus was too attenuatedwhere the defendant robbed the owners of a

business in their home. 222 F.3d 234, 240 (6thCir. 2000). The Court concluded that, whenthe Government seeks to establish a nexus be-tween an individual victim and a business en-gaged in interstate commerce,that connectionmust be a substantial one - not one that is for-tuitous or speculative. Id. at 239- 40. In Wang,some of the stolen money belonged to the vic-tims restaurant that operated in interstatecommerce but, because the robbery was of ahome, the Government needed to do more thanshow that the victims owned a business. Id.at 240.

The appellants also note cases in which the in-terstate commerce nexus was held to be tootenuous because the robbery was directed at anindividual in his or her personal capacityrather than at a business. See United States v.Perrotta, 313 F.3d 33, 38-40 (2d Cir. 2002)(holding that the [*22] interstate commerce

nexus was too attenuated where extortion wasdirected at a victim who worked for an entity en-gaged in interstate commerce, but was aimedat him in his personal capacity, not in his offi-cial capacity); United States v. Quigley, 53F.3d 909, 910-11 (8th Cir. 1995) (holding that

the robbery of two individuals en route to a li-quor store did not have a potential effect on in-terstate commerce); United States v. Collins, 40F.3d 95, 99-100 (5th Cir. 1994) (holding thatthe Hobbs Act did not apply to the robbery of acomputer company executive in his home,even though the crime may

18

have prevented him from getting to work ormaking business calls because hisonly connec-

tion with interstate commerce was his employ-ment by a business engaged in interstate com-merce). The appellants further argue that theconnection must be even stronger when ahome is robbed. Indeed, we have exercised cau-tion when assessing a Hobbs Act prosecutionfor the robbery of a home. Jimenez-Torres, 435F.3d at 7-8 (Where . . . the crime concernsthe robbery of a home rather than of a busi-ness, we approach the task of applying the deminimus standard with some caution, lest ev-ery robbery (which by [*23] definition hassome economic component) become a federalcrime.).

We decline to adopt the heightened standardset forth in Wang. In this circuit, a robbery un-der the Hobbs Act need only have areason-ably probable effect on commerce, howeverminimal. Urban, 404 F.3d at 763-64. Thesubstantial connection required in Wang hasno basis in our case law and adopting it wouldcontradict our adherence to the requirement

that a robbery need only

produce[] any interfer-ence with or effect upon interstate commerce,whether slight, subtle or even potential, in or-der to support prosecution under the HobbsAct. Haywood, 363 F.3d at 210 (quotation marksomitted).

Moreover, Wang and the other cases in whichthe robberies were directed at individuals in theirpersonal capacity rather than at businesses are


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inapposite. The appellants here did not rob indi-viduals in their personal capacity or in theirhomes. To the contrary, the robbery occurred inJeanettes place of business, her customerswere victimized and robbed, and there was evi-dence that the robbery targeted business as-

sets. Testimony from customers

19

of the speakeasy indicated that the gatheringsat Jeanettes were not merely social events[*24] with friends. For instance, Vasquez tes-

tified that Jeanettes house wasa place wherepeople would go after time inside the barsthat they closed up at 2:00. You stop in for acouple drinks. Its known on the streets as a

speakeasy.

JA 962-63. Likewise, Anderson tes-tified that the basement wasset up like abar and thatit was a speakeasy. Id. at 871,899. Even if we assume that alcohol was no lon-ger being sold at the time of the robbery, thatdisputed fact does not alter our conclusion, as thereason the victims were in Jeanettes housewas due to her business selling alcohol and theywere still playing cards in the dining roomwhen the robbery occurred. Thus, there was suf-ficient evidence that appellants robbed indi-viduals, but in their capacity as customers of a

business.

There was also evidence in the record fromwhich a rational jury could conclude that the ap-pellants targeted the assets of Jeanettes busi-ness, not solely the customers. The appellantshad a meeting the night before the robberyin which they learned about a house withalot of money in it. JA 1430. During the rob-bery, they asked Jeanette wherethe money wasand rummaged through her refrigerator. App.1167-69. [*25] The nexus to interstate com-

merce in this case was, therefore, more directthan in Wang and the other cases cited by theappellants. See Walker, 657 F.3d at 181 (hold-ing that the connection between the robberyand interstate commerce wasmuch more di-rect than in Wang because, at the time of therobbery, the victim in Walker was selling ille-gal drugs that had traveled through interstatecommerce).

We recognize that this case stands at the outerlimit of Hobbs Act jurisdiction and it is farfrom obvious which cases

20

are purely matters for state prosecution. TheHobbs Act interstate commerce question mustbe resolved on a case-by-case basis. See Lo-pez, 514 U.S. at 561 (noting that acase-by-case inquiry is undertaken for statutes contain-ing a jurisdictional element). When we viewthe evidence in this case in the light most favor-able to the Government, we conclude thatthere was a sufficient nexus to interstate com-merce to support the appellants convictions un-der the Hobbs Act.

III. The Witness Tampering Convictions

Shavers and White next contend that the evi-dence presented at trial was insufficient to sup-port their convictions for witness tampering.Despite the considerable deference [*26] thatwe afford to a jurys findings in reviewing a con-viction for sufficiency of the evidence, weagree and conclude that the evidence in thiscase does not support the witness tampering con-victions.

A.

In relevant part, the Victim and Witness Protec-tion Act of 1982 (VWPA) provides:

(b) Whoever knowingly uses intimidation,threatens, or corruptly persuades another per-son, or attempts to do so, or engages in mislead-ing conduct toward another person, with in-tent to-

(1) influence, delay, or prevent the testimonyof any person in an official proceeding;

21

(2) cause or induce any person to--

(A) withhold testimony, or withhold a record,document, or other object, from an official pro-ceeding;


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(B) alter, destroy, mutilate, or conceal an ob-ject with intent to impair the objects integrityor availability for use in an official proceeding;

(C) evade legal process summoning that per-son to appear as a witness, or to produce a re-

cord, document, or other object, in an offi-cial proceeding; or

(D) be absent from an official proceeding towhich such person has been summoned by le-gal process; or

(3) hinder, delay, or prevent the communica-tion to a law enforcement officer or judge of theUnited States [*27] of information relating tothe commission or possible commission of aFederal offense or a violation of conditions

of probation supervised release, parole, or re-lease pending judicial proceedings;

shall be fined under this title or imprisoned notmore than 20 years, or both.

18 U.S.C. 1512(b).

22

Shavers and White were convicted of violating 1512(b)(1), which seeks to safeguard antici-pated testimony in anofficial proceeding. Anofficial proceeding for the purposes of theVWPA is defined as

a proceeding before a judge or court of theUnited States, a United States magistrate judge,a bankruptcy judge, a judge of the UnitedStates Tax Court, a special trial judge of theTax Court, a judge of the United States Courtof Federal Claims, or a Federal grand jury.

Id. 1515(a)(1)(A). The VWPA explicitly pro-vides thatan official proceeding need notbe pending or about to be instituted at the timeof the offense. Id. 1512(f)(1). There does,however, need to be a connection between thedefendants conduct and the official proceed-ing. In Arthur Anderson LLP v. UnitedStates, the United States Supreme Court re-viewed convictions under 1512(b)(2)(A) and(B). 544 U.S. 696, 698 (2005). The [*28] Courtheld that to satisfy theofficial proceeding re-

quirement under those subsections, the Govern-ment must show anexus between the defen-dants conduct and a particular proceeding.Id. at 707- 08. To meet that nexus requirement,the Government must prove that the defen-dantha[d] in contemplation [a] particular offi-

cial proceeding when he or she attempted tointerfere with evidence or a witness. Id. at 708.The proceeding need not have been pendingor about to be instituted, but it must have beenforeseeable. Id. at 707-08. Thus, the defen-dantmust believe that his actions are likely toaffect a particular, existing or foreseeable offi-cial

23

proceeding. United States v. Kaplan, 490 F.3d

110, 125 (2d Cir. 2007) (citing Arthur Ander-son, 544 U.S. at 708).

While the Court in Arthur Anderson inter-preted 1512(b)(2)(A) and (B)only, the Courtsanalysis and application of thenexus require-ment applies with equal force to 1512(b)(1).All three subsections qualify the prohibited con-duct by requiring that the defendant target tes-timony or evidence in anofficial proceed-ing. Consistency demands that we apply theArthur Anderson nexus requirement to

1512(b)(1). See United States v. Matthews,505 F.3d 698, 708 (7th Cir. 2007) [*29] (hold-ing that Arthur Anderson applies to prosecu-tions under 1512(c)(1) because that subsec-tion alsospeaks in terms of the relationshipbetween obstructive acts and a proceeding.);Kaplan, 490 F.3d at 126 (noting that the jury in-structions on the 1512(b)(1) chargeundoubt-edly needed to comply with the nexus require-ment discussed in Arthur Anderson).

Accordingly, the Government in a 1512(b)(1)

prosecution is tasked with proving that the de-fendant contemplated a particularofficial pro-ceeding that was foreseeable when he or sheengaged in the proscribed conduct. As part ofthat requirement, the Government must dem-onstrate beyond a reasonable doubt that the con-templated proceeding met the definition ofof-ficial proceeding articulated in 1515(a)(1)(A). The VWPA is clear, however,


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that the Government is not required to showthat the defendant knew that the contemplatedproceeding was federal in nature:

In a prosecution for an offense under this sec-tion, no state of mind need be proved with

24

respect to the circumstance . . . that the officialproceeding . . . is before a judge or court ofthe United States, a United States magistratejudge, a bankruptcy judge, a Federal grand

[*30] jury, or a Federal Government agency

18 U.S.C. 1512(g)(1).

The parties dispute whether the United States

Supreme Courts recent decision in Fowler v.United States affects our analysis. 131 S. Ct.2045 (2011). In Fowler, the Court considered thefederal nature requirement in 1512(a)(1)(C),which proscribes the murder of a person with theintent toprevent the communication by anyperson to a law enforcement officer or judge ofthe United States of information relating tothe commission or possible commission of aFederal offense. The federal prosecution inFowler arose after Charles Fowler shot a po-

lice officer who caught him and his associ-ates suiting up to rob a bank. 131 S. Ct. at 2048.It was clear that Fowler had shot the officerwith the intent to prevent him from speaking toother law enforcement officers but that he didnot have any specific law enforcement officer orset of officers in mind at the time. To satisfythe federal nexus requirement in such a situa-tion, the Court held, the Government must dem-onstrate a reasonable likelihood that, had,e.g., the victim communicated with law enforce-ment officers, at least one relevant communi-

cation would have been made [*31] to a fed-eral law enforcement officer. Id. at 2052(emphasis in original).

Unresolved is whether thereasonable likeli-hood test set forth in Fowler applies to prosecu-tions brought under 1512(b)(1) as well. Wedecide that question in the negative.

25

Critically, Fowler was a prosecution under 1512(a)(1)(C), which, like 1512(b)(3), is an in-vestigation-related provision aimed at protect-ing the communication of information to law en-forcement. Once again, 1512(b)(1) isdistinct from those provisions because it seeks

to protect anticipated testimony in a particu-lar official proceeding. See Byrne, 435 F.3d at24 (Unlike [ 1512] (b)(2) and 18 U.S.C. 1503, which protect particular official proceed-ings, [ 1512] (b)(3) protects the general abil-ity of law enforcement agents to gather infor-mation relating to federal crimes (citationomitted)). Thereasonable likelihood stan-dard set forth in Fowler relates to the probabil-ity of a victim communicating information toa federal officer, an element required under theinvestigation-related provisions of 1512 but

not the official proceeding provisions. Thus, byits very nature, thereasonable likelihoodstandard set forth [*32] in Fowler is fashionedfor the analysis of a materially different of-fense than the one described in 1512(b)(1).For the same reasons that the holding in Ar-thur Anderson does not apply to 1512(b)(3)offenses and the other investigation-related of-fenses in the VWPA, it would be illogical toemploy the Fowler holding in prosecutionsbrought under the VWPA provisions that re-

quire contemplation of an

official proceed-ing.

Furthermore, it is difficult to conceive of howwe could reconcile thereasonable likelihoodstandard from Fowler with the holding in Ar-thur Anderson, which requires that the Govern-ment prove that the defendant contemplated aparticular official proceeding. The Fowler deci-sion addressed a situation in which the defen-dant did not have in contemplation a particulargroup of law enforcement officers. Thus, if ap-

plied to 1512(b)(1), the rule set forth in Fowler

26

would directly contradict the Arthur Andersonpronouncement. See Arthur Anderson, 544 U.S.at 708 (A knowingly corrupt persuader can-not be someone who persuades others to shreddocuments under a document retentionpolicy when he does not have in contemplation


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any particular official proceeding in whichthose [*33] documents might be material. (al-terations and quotation marks omitted)). It istelling that the Fowler opinion does not men-tion Arthur Anderson. If the Supreme Court in-tended to overrule Arthur Anderson and for

all of the VWPA to be governed by Fowler, itpresumably would have mentioned Arthur An-derson and explained why. See, e.g. , Shalalav. Ill. Council on Long Term Care, Inc., 529 U.S.1, 18 (2000) (The Court does not normallyoverturn, or so dramatically limit, earlier author-ity sub silentio.). Instead, the Court crafted adistinct inquiry for prosecutions under theVWPA provisions that target interference withwitness communication to law enforcement of-ficers. This again leads us to the logical con-clusion that there are at least two lines of juris-

prudence developing separately under theVWPA: one for the investigation-related provi-sions, such as 1512(b)(3) and (a)(1)(C),and one for theofficial proceeding provi-sions, such as 1512(b)(1) and (b)(2). SeeRonda, 455 F.3d at 1288 (observing that the linkto a federal proceeding in the investigation-related provisions is less stringent than theof-ficial proceeding requirement in

1512(b)(1) and (2)). Hence, we hold that[*34] a successful prosecution under

1512(b)(1) requires proof, beyond a reasonabledoubt, that the defendant contemplated a par-ticular, foreseeable proceeding, and that the con-templated proceeding constituted anofficialproceeding, as defined by

1515(a)(1)(A).

B.

27

Applying the above-stated principles, we con-clude that the Governments evidence at trialwas insufficient to satisfy theofficial proceed-ing requirement in this case. It is clear from thetranscript of the telephone calls that Shaverssand Whites efforts were directed at preventingpotential witnesses of the speakeasy robberyfrom testifying at their upcoming hearing inPennsylvania state court. There is no evidencethat they contemplated any other proceeding.

In the telephone calls at issue, Shavers andWhite expressly referred to specific upcomingstate court hearings. In his prison phone call onNovember 12, 2005, for instance, White dis-cussed the speakeasy robbery and who wouldshow up at his upcoming court date. The con-

templated court date could only have been ahearing in state court, as the federal prosecu-tion was not initiated until over a year later. OnNovember 14, White mentioned needing some-one to show up [*35] for court the follow-ing day for apreliminary. JA 2106. In thatsame conversation, Shavers discussed that hewould be going to court the following day. OnNovember 18, White stated that they wouldbeback to court the 30th. Id. at 2132. Then,in the November 30 conversation, Shaverstold the person on the other end of the line that

they had gone to court and would go back inthree weeks on January 24. Likewise, in theJanuary 9, 2006 conversation, Shavers men-tioned that he would be going to court for hispreliminary on January 24. Id. at 2159. Fi-nally, on September 2, White told the callerthatI got trial on the 18th, I need you to handlesomethin for me[.] Id. at 2202. All of theseconversations demonstrate that Shavers andWhite had in contemplation specific hear-ings in state court, not anofficialproceedingas defined by 1515(a)(1)(A),which, again, requires that the contemplatedproceeding be federal in nature. There was no

28

discussion of any other proceeding nor indica-tion that Shavers and White intended to pre-vent the witnesses from testifying at a proceed-ing other than the state court one.5

The District Court held that, at the time of the al-leged witness tampering, [*36] there wasa

sufficient basis for one to be put on notice ofthe potential for federal prosecution. Id. at1811. Indeed, there was evidence that Shaversand White were aware that they were subject toa federal investigation by November 18, 2005at the latest. In connection with the robbery of apost office on November 7, 2005, the FBI ini-tiated an investigation into the overall activi-ties of the group of people associated with


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Ebony Gist, including Shavers and White. Twoweeks after the robberies, postal inspectorsand the Philadelphia Police Department ex-ecuted a search warrant at Gists home. Postalinspectors also began reviewing the prisontelephone calls of Shavers and White. The prison

telephone call transcripts reveal that Shaversand White learned on November 18, 2005 (at thelatest) that federal agents were investigatingthem in connection with the post office rob-bery. Id. at 2130 (Kenneth Ford:[T]hey got theFeds, SWAT, ramming the houses up in thereand all. Shavers:I heard, man[.]); id. at 2145(Darryl Harris:The law ran into Ebs spotlast night. White:What? The Feds theboy.). Notwithstanding that evidence, the appel-lants knowledge of the post office robbery[*37] investigation does not support the Gov-

ernments case here because the attempts at

5Shavers was convicted of violating 1512(b)(1) for telephone conversations occur-ring on November 14 and 18, 2005 and Janu-ary 9, 2006. White was convicted of violat-ing 1512(b)(1) for telephone conversationsoccurring on November 12 and 18, 2005, andSeptember 2, 2006.

29

witness tampering were so obviously directed atspecific state court proceedings and not someother possible proceeding.

Our discussion in United States v. Bell is in-structive. 113 F.3d 1345 (3d Cir. 1997). In Bell,Roberta Ronique Bell and several others wereaccused of murdering Doreen Proctor, who wasscheduled to testify against Bells boyfriend,David Tyler, in his state trial on drug offenses.Id. at 1347. Bell was charged with violating 1 512(a)(1)(A) and

(C) (relating to the murder of a witness), and 1512(b)(1), (2), and (3). Although our discus-sion of the 1512(b)(1) charge was limited, wespecified that 1512 clearly would not ap-ply if Bells sole motivation in killing Proctorwas to prevent her from testifying at Tylers trial,because that state-court trial does not qualifyas an official proceeding. Id. at 1349. That[*38] is undoubtedly the case here. Even though

a federal proceeding was arguably foreseeable inthis case, there was no nexus between the pos-sible federal proceeding and the appellantsconduct. Their conduct was unequivocally incontemplation of a state court proceeding.

The Government asserts that this case is simi-lar to United States v. Persico, in which theCourt of Appeals for the Second Circuit heldthat a federal criminal proceeding was foresee-able where the defendant had been informedby the Government that he was the target of afederal investigation. 645 F.3d 85, 108 (2d Cir.2011). Persico is distinguishable from thecase at bar, however. In Persico, there was nopending state criminal proceeding at the time thedefendant engaged in witness tampering.Thus, there was no dispute that the particular

proceeding contemplated by the defendant wasthe imminent federal grand jury proceeding.Here, Shavers and White were clearly contem-plating their

30

upcoming hearings in Pennsylvania state court,and not any federal proceeding, when theysought to tamper with potential witnesses.

For that reason, we hold that no rational trier

of fact could have found the essential elementsof a 1512(b)(1) [*39] violation beyond a rea-sonable doubt. See United States v. Shively, 927F.2d 804, 811-12 (5th Cir. 1991) (holding thatthe Government had not produced evidence thatthe defendant intended to influence an officialproceeding because the evidence showed onlythat he intended to influence the state civil pro-ceedings that he had brought against his insur-ance agency). As such, we will vacate Shav-erss convictions on Counts Five, Six, andSeven, and Whites convictions on Counts Four,

Six, and Eight.

IV. The Identification Evidence

The appellants challenge the admission of anumber of eyewitness identifications on due pro-cess grounds, arguing that they were the re-sult of impermissibly suggestive procedures andwere unreliable. After a suppression hearing,the District Court summarily held that the iden-


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tification procedures used by the police werenot unduly suggestive and the identificationswere, therefore, admissible. We find no basis forreversal with respect to the identification evi-dence.

A.

We review the District Courts ruling on the ad-mission of identification testimony for anabuse of discretion. United States v. Brownlee,454 F.3d 131, 137 (3d Cir. 2006). In review-ing the denial of [*40] a motion to suppress, weexamine the

31

District Courts factual findings for clear errorand review its legal determinations under a

plenary standard. Id.

To determine whether an out-of-court identifica-tion procedure violated due process, we con-duct a two- step inquiry. First, we assess whetherthe police used an identification procedurethat was unnecessarily suggestive. Perry v. NewHampshire, 132 S. Ct. 716, 724 (2012). In an-swering the question of whether a show-upidentification was impermissibly suggestive,each case must be considered on its own facts.Neil v. Biggers, 409 U.S. 188, 196 (1972) (quo-

tation marks omitted). Even where the po-lice employed an unnecessarily suggestive pro-cedure, however, the identification testimonyis not automatically excluded. Perry, 132 S. Ct.at 724. Instead, as a second step, we engagein a case-by-case analysis of whether the proce-dure gave rise to such asubstantial likeli-hood of misidentification that admitting theidentification would be a denial of due pro-cess. Id. If so, the identification evidence mustbe excluded. If, on the other hand,the indi-cia of reliability are strong enough to outweigh

the corrupting effect of the police-arranged[*41] suggestive circumstances, the identifica-

tion evidence ordinarily will be admitted, andthe jury will ultimately determine its worth. Id.at 720. Recently, in Perry v. New Hampshire,the United States Supreme Court directed thatcourts should not reach the reliability inquiryunless the identification resulted from a situa-tion created by improper police conduct. Id.

at 728.

B.

White and Shavers first protest the admission ofidentifications made by eyewitnesses Brian

Anderson and

32

Alberto Vasquez at the scene of the robbery.They argue that the out-of-courtshow-up wit-ness identifications were impermissibly sug-gestive because the witnesses made the identifi-cations while Shavers and White werehandcuffed in police vehicles at the scene ofthe robbery and bystanders were commenting onthe men in the vehicles. The appellants main-

tain that the on-scene identifications were unnec-essary because the police could have just aseasily conducted a lineup at the police station,and that they were unreliable because nei-ther witness had an opportunity to observe all ofthe perpetrators facial features during therobbery.

We have recognized that a show-up identifica-tion procedure of the sort employed[*42] hereis inherently suggestive because,

by its very nature, it suggests that the police

think they have caught the perpetrator of thecrime. Brownlee, 454 F.3d at 138; see alsoStovall v. Denno, 388 U.S. 293, 302 (1967),overruled on other grounds by Griffith v. Ken-tucky, 479 U.S. 314 (1987) (The practice ofshowing suspects singly to persons for the pur-pose of identification, and not as part of a line-up, has been widely condemned.). Nonethe-less, show-up identifications may be necessarywhen there is animperative need for an im-mediate identification. Stovall, 388 U.S. at 302.

For instance, exigency justified a show-upidentification without the presence of counselin Stovall v. Denno because a key witness wascritically injured in the hospital and a show-upidentification was the only feasible proce-dure. Id.

In United States v. Brownlee, we held thatshow-up identifications by a number of eyewit-nesses in that case were unduly suggestive.


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454 F.3d at 138. The police conducted the iden-tifications while the defendant, who was sus-pected of

33

car-jacking, was handcuffed in the policecruiser at the scene where the stolen car hadcrashed. The entire scene gave the impressionthat [*43] the police had apprehended the de-fendant in the stolen car. Exacerbating the sug-gestiveness were the facts that the defendant wasthe only suspect shown, the four witnessesmade identifications while exposed to each oth-ers influence, and there was no reason whythe defendant could not have been taken to thepolice station for a less suggestive line-up orphoto array. Id.

We conclude that the show-up identifications inthis case were unnecessarily suggestive. Like inBrownlee, the identifications took placewhile Shavers and White were handcuffed in pa-trol cars at the scene of the crime and theywere the only suspects shown to the witnesses.Moreover, as in Brownlee, there was a riskhere that the witnesses influenced each other.In particular, when the officers pulled up to therobbery scene with the appellants in police ve-hicles, the eyewitnesses waiting outside of thehouse approached the patrol car and policevan, started pointing at Shavers and White andsaidthats the guys that just left out ofthere. JA 556. Anderson testified that hepointed at the suspects to identify them and hecould hear the other witnesses discussing andidentifying the suspects. Id. at 555.

The Government [*44] proffered no reasonwhy the appellants and witnesses were not takento the police station for a less suggestiveline-up or photo array, or at least down thestreet for a less suggestive show-up identifica-tion. We acknowledge that some exigency ex-isted here because, due to witness reports that theperpetrators were carrying firearms, it was vi-tal to know immediately whether the correctpeople had been apprehended. See Simmonsv. United States, 390 U.S.

34

377, 384-85 (1968) (holding that a show-upidentification procedure was not unnecessarilysuggestive because[a] serious felony had beencommitted[,] [t]he perpetrators were still atlarge[,] [and it] was essential for the FBI agentsswiftly to determine whether they were on the

right track ). It was also important to con-duct the identifications while the witnessesmemories were still fresh. See United States v.Funches, 84 F.3d 249, 254 (7th Cir. 1996)(We have also recognized that immediate show-ups can serve other important interests. For ex-ample, show-ups allow identification beforethe suspect has altered his appearance and whilethe witness memory is fresh, and permit thequick release of innocent persons. (quotation[*45] marks omitted)); United States v. Wat-

son, 76 F.3d 4, 6 (1st Cir. 1996) (holding thata show-up identification was not impermissiblysuggestive where it took place immediately af-ter the unlawful conduct and was necessary toavoid arresting the wrong person). Despitethe urgency at hand, however, the suggestive-ness of the identification procedure could havebeen easily minimized if the officers hadparked down the street and brought each eyewit-ness separately to make an identification.

Although the identifications under these circum-stances were unnecessarily suggestive, theirpresentation to the jury was still appropriate be-cause the circumstances did not create a sub-stantial risk of misidentification. In making thatassessment, we take into account the totalityof the circumstances. Biggers, 409 U.S. at 196.In Neil v. Biggers, the Supreme Court setforth various factors that aid courts in determin-ing whether an identification was reliable de-spite a suggestive procedure: (1)the opportu-nity of the witness to view the criminal atthe time of the crime, (2)the witness

35

degree of attention, (3)the accuracy of the wit-ness prior description of the criminal, (4)the level of certainty [*46] demonstrated bythe witness at the confrontation, and (5)thelength of time between the crime and the con-frontation. Id. at 199-200. In Biggers, the Courtheld that a show-up identification was reliable


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despite a suggestive procedure because the vic-tim spent a lot of time in close proximitywith her assailant, her description to policewasmore than ordinarily thorough, she hadno doubt that the defendant was the assail-ant, and she had been presented with a num-

ber of previous show-up identification inquirieswithout making an identification. Id. at 200-01. To warrant the exclusion of evidence, theBiggers factors must indicate a substantial riskof misidentification. The existence ofpoten-tial unreliability alone is not enough to com-pel exclusion of an identification becausethere areother safeguards built into our adver-sary system that minimize the risk that ajury will placeundue weight on eyewitness tes-timony of questionable reliability. Perry, 132S. Ct. at 728. Those safeguards include cross-

examination, the right to effective assistanceof counsel, eyewitness-specific jury instruc-tions, the beyond a reasonable doubt standard,and the state and federal rules of[*47] evi-dence. Id. at 728-29.

In Brownlee, we held that the eyewitness iden-tifications were reliable despite law enforce-ments use of an impermissibly suggestive pro-cedure. We noted that some facts suggested arisk of misidentification: (1) the abbreviated du-ration of the car-jacking - only 30 seconds;

(2) the victims testimony that she was predomi-nantly focused on the weapon, not the perpe-trator, during the car-jacking; (3) the victimsmistaken account to the police that the perpe-trator was a child wearing shorts, when he was

36

actually a 30 year-old wearing pants; and (4)the generality of the witnesses descriptions ofthe perpetrator. Brownlee, 454 F.3d at 140. De-

spite those concerns, we concluded that the iden-tifications were properly admitted because thewitnesses were able to observe the perpetrator atclose range, in broad daylight, and for suffi-cient time; their testimony revealed a substan-tial degree of attention during the crime; theirdescriptions were fairly accurate; their degreeof certainty was absolute; and only 25 minuteshad elapsed between the crime and the eyewit-

ness identifications. Id. We decided that thefacts undermining the reliability of the identifi-cations -[t]he [*48] generality of the wit-nesses descriptions of the suspect, the rela-tively short period of time they saw him, and theother shortcomings pertaining to their identifi-

cations - wentmore to the weight of the evi-dence than the reliability of their identifica-tions, and thus were issues for the jury. Id.

Biggers and Brownlee drive our conclusion thatVasquezs and Andersons identifications didnot present a substantial risk of misidentifica-tion. With respect to the first Biggers factor, An-derson and Vasquez both had the opportunity,albeit brief, to view the appellants clothing andfaces. On the morning of November 8, 2005,Anderson witnessed three armed gunmen wear-

ing hooded sweatshirts enter Jeanettes resi-dence and order everyone down on the ground.Anderson testified about Shavers that hecould seepart of his face, including his nose,mustache, and the top of his forehead. JA878. Of the other appellants, he testified:[T]heother one I could see his face The otherone, he had his hood like real loose. I could seehis whole face. Id. After the robbery, he rec-ognized the men in the police cars[b]ecause oftheir size and their faces. They still had theblack hoodies on.[*49] Id. at 882.

37

Similarly, Vasquez testified that the three perpe-trators wore hooded sweatshirts that did notshow their faces and he could seeonly like theireyes and maybe their foreheads. Id. at 966.Nevertheless, he was able to identify the manwith the shotgun, Shavers, because he un-zipped his hooded sweatshirt. Id. at 966-67.He also testified that he was able to see Whites

face. Id. at 975. When asked to identify themen in the police cars after the robbery, Vasquezrecognized thembased on the appearance oftheir faces and their clothes that they were wear-ing They were similar, and facial struc-tures, they had the same faces that I had seenwhen they took their hoods off, and theywere wearing the same clothing and hoodies atthe time. Id. at 978-79.


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Although the witnesses were only able to viewthe perpetrators for a short time and couldonly see parts of their faces, they saw them atclose range and were able to give an accurategeneral description including what the perpe-trators looked like and what they were wear-

ing. As we held in Brownlee, the shortamount of time in which the witnesses wereable to observe the perpetrators and the general-ity of their descriptions [*50] were facts forthe jury to consider rather than ones that pre-cluded admission of the identifications. 454 F.3dat 140. Shavers notes that Vasquez inaccu-rately testified about his weight, stating that heweighed 150 pounds, when 200 pounds wasmore accurate. An inconsistency such as this,however, is for the jury to consider when theydecide how to weigh an identification. See

id.

The second Biggers factor also supports the re-liability of the eyewitness identifications. Thewitnesses testimony illustrates that they werepaying close attention to the perpetrators. Forinstance, they knew the kinds of firearms

38

the perpetrators carried:Mr. Lewis had ablack 9-millimeter or .45 caliber and[t]heother gentleman . . . had a nickel-plated pis-tol. JA 969. The possibility that Anderson andVasquez were more focused on the firearmsthan on the perpetrators faces was another ques-tion for the jury, not a reason to surmise thatthere was a substantial risk of a misidentifica-tion as a matter of law. See Brownlee, 454 F.3dat 140.

The third Biggers factor has no bearing on thiscase because Vasquez and Anderson gave nodescription of the perpetrators prior to their on-

the-scene identifications. [*51] The fourthBiggers factor counsels that there was little riskof misidentification here because, like the wit-nesses in Brownlee, both Anderson andVasquez testified that they were certain thatthey had identified the correct men. Further-more, Vasquez and Anderson both repeatedlycorroborated their initial identifications. Later onthe day of the robbery, Vasquez recognized

White at the prison. Two years after the rob-bery, Anderson identified Shavers and Whitewhen shown separate pictures. Four years afterthe robbery, Anderson was placed in thesame holding cell as Lewis, Shavers, and Whitewhere he recognized all three as involved in the

robbery. And, at trial, Vasquez and Ander-son identified all three appellants.

Finally, the police presented Vasquez and Ander-son with the suspects within minutes of the rob-bery. There is an inherent reliability to anidentification made immediately following thewitnesss confrontation with the suspect be-cause the perpetrators appearance is fresh in thewitnesss mind. We articulated that prin-ciple in United States v. Gaines, when we heldthat an on-the-scene show-up

39

identification made immediately following abank robbery was justified by, inter [*52] alia,the inherent reliability of an immediate identi-fication. 450 F.2d 186, 197 (3d Cir. 1971). Simi-larly, in United States v. Hawkins, another rob-bery case, the Court of Appeals for theSeventh Circuit held that a show-up identifica-tion was reliable, in part, because it was con-ducted within an hour of the crime. 499 F.3d

703, 710 (7th Cir. 2007).

Scrutiny of the Biggers factors as applied to thefacts of this case convinces us that the show-up identifications did not present a sub-stantial likelihood of misidentification. Thus, wehold that the District Court properly permit-ted the jury to hear testimony about theshow-up identifications and the related in-courtidentifications.

C.

Lewis challenges identifications made byVasquez and Anderson as well. First, he ob-jects to the admission of Vasquezs identifica-tion of him on June 25, 2008 in an eight-person photo array. In viewing the photoarray, Vasquez initially stated that he could notdecide whether the third perpetrator wasLewis or the person in the fourth photo, afiller. Nevertheless, he later identified Lewis in


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court at the pretrial hearing and testified that hewas 100% sure that the third perpetrator wasLewis after he studied [*53] the pictures inthe photo array more closely. Lewis maintainsthat the photo array and in-court identificationsby Vasquez should have been suppressed be-

cause they were unreliable.

Vasquezs position is unpersuasive. As dis-cussed above, the reliability prong of the dueprocess analysis is only

40

reached if the court determines that law enforce-ment used an impermissibly suggestive proce-dure. See Perry, 132 S. Ct. at 724 ([D]ue pro-cess concerns arise only when law enforcement

officers use an identification procedure that isboth suggestive and unnecessary.). BecauseLewis has proffered no reason why the photo ar-ray was unnecessarily suggestive, there is nobasis for finding a due process violation oc-curred here and we do not reach the reliabilityinquiry.

D.

Next, Lewis asserts that Andersons in-courtidentification of him was the result of an imper-missibly suggestive encounter in which Ander-son (who was incarcerated) was placed in aUnited States Marshals Service holding cellwith the three appellants three months beforetrial.6 On the day the encounter took place, June14, 2009, a suppression hearing had beenscheduled to occur. When the

6 White states in his brief that he joins Lew-iss [*54]

argument with respect to Andersons identifica-tion. Lewiss brief provides no argument onWhites behalf, however. Assessing identifica-tion evidence is a predominantly fact-based in-quiry and White provides no factual supportor argument illustrating why Andersons identi-fication of him was admitted in violation ofdue process. White has, therefore, inadequatelypresented the issue on appeal, See Skretvedtv. E.I. DuPont DeNemours, 372 F.3d 193,202-03 (3d Cir. 2004) ([A]n issue is waived un-

less a party raises it in its opening brief, and forthose purposes a passing reference to an is-sue will not suffice to bring that issue beforethis court.).

41

hearing was cancelled, the Government de-cided to conduct a preparatory session with An-derson instead and did not cancel his order oftransport from prison to federal court. For an un-known reason, however, the order to transportthe appellants to the courthouse was not can-celled and Anderson was inadvertently placedin a holding cell with them. Anderson first rec-ognized Lewis by his face and voice whenthey were transported from the prison block inan elevator together with two other prisoners

(not Shavers and White). When Anderson,Lewis, [*55] Shavers, and White were laterplaced in a holding cell together, Anderson rec-ognized all three appellants as the perpetrators ofthe robbery. He then identified them at the pre-trial hearing and at trial. Lewis moved to sup-press Andersons in-court identification of himon the grounds that Anderson had failed toidentify Lewis previously but then recognizedhim as involved in the robbery after encounter-ing him in the holding cell with the other ap-pellants.

Due to the holding cell mishap, Andersons in-court identification of Lewis is certainly sus-pect. In United States v. Emanuele, we dealtwith a somewhat analogous incident. 51 F.3d1123 (3d Cir. 1995). In that case, two wit-nesses were sitting outside of the courtroom dur-ing trial when they observed the defendantwalking down the corridor in handcuffs with aDeputy United States Marshal on either side ofhim. Id. at 1129-30. We declared that the situ-ation was impermissibly suggestive. Id. at

1130. In light of Emanuele, the suggestive na-ture of the situation in this case is evident.Two years after the robbery, Anderson could notidentify Lewis in a photo array. When An-derson saw Lewis in the prison elevatorwhile exiting the prison [*56] on a day heknew he was going to testify about the speak-easy robbery, it was

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natural for him to suspect that Lewis was thethird person involved in the robbery. That suspi-cion was likely confirmed when he and Lewiswere then placed in a holding cell with Shav-ers and White, whom Anderson had alreadyidentified. Placing Lewis in an elevator and then a

holding cell with a key witness could have andshould have been avoided. It is equivalent toallowing a witness to observe a defendant inshackles outside the courtroom.

The Government asserts that placing the fourmen together was inadvertent. The lack of an im-proper motive is immaterial, however, be-cause the encounter was still the result of im-proper conduct on the part of law enforcement.See id. (We conclude that the confrontation wascaused by the government, albeit inadver-

tently ......... ). Under Perry, the police musttake an active role in creating the suggestivesituation before the reliability inquiry is reached.That prerequisite can be gleaned from theCourts use of the active verbsarrange,em-ploy,use, and others throughout the opin-ion. See Perry, 132 S. Ct. at 724 ([D]ue pro-cess concerns arise only when law enforcement[*57] officers use an identification procedure

that is both suggestive and unnecessary.); id. at726 (The Court adopted a judicial screen forreliability as a course preferable to a per se rulerequiring exclusion of identification evidencewhenever law enforcement officers employ animproper procedure.); id. ([T]he Court haslinked the due process check . . . only to im-proper police arrangement of the circumstancessurrounding an identification.); id. at 726-27([T]he risk of police rigging was the very dan-ger to which the Court responded in Wadewhen it recognized a defendants right to coun-sel at postindictment, police-organized identifi-cation procedures.); id. at 727 (To illustrate the

improper43

suggestion it was concerned about, the Courtpointed to police-designed lineups ..........). TheCourt also justified its rule on the basis thatthe deterrence rationale justifying the exclusionof an identification at trialis inapposite incases, like Perrys, in which the police en-

gaged in no improper conduct. Id. at 726. Nev-ertheless, the Court explicitly denied that itwas creating a mens rea requirement for the po-lice conduct and maintained thatwhat trig-gers due process concerns [*58] is police useof an unnecessarily suggestive identification

procedure, whether or not they intended the ar-ranged procedure to be suggestive. Id. at 721n.1. Thus, we do not interpret Perry as requir-ing that the improper police conduct be inten-tionally aimed at creating a suggestive situa-tion.

This case is distinguishable from Perry, inwhich the witness hadspontaneously walkedto the window of her apartment building andpointed to Perrywithout any inducement fromthe police. Id. at 722. Here, the United

States Marshal actively placed the appellantsand Anderson together. Either the United StatesMarshal or the Bureau of Prisons was respon-sible for ensuring that the three appellants wouldnot be housed with a critical witness. The fail-ure of either government entity to do so re-sulted in an impermissibly suggestive situation.

We arrive at the question of whether Ander-sons identification of Lewis was bolstered bysufficient indicia of reliability despite the un-duly suggestive confrontation in the holding

cell. Anderson had only a short time to view theperpetrators faces at the time of the robbery- maybe 20 seconds. Critically, Anderson testi-fied that Lewis did not have his face[*59] covered during the robbery. Anderson ap-

pears

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to have been paying attention because he wasable to report accurately that Lewis was wear-ing a gray hooded sweatshirt and carrying a

black automatic handgun.The strength of Andersons identification fal-ters upon consideration of the third Biggers fac-tor, the accuracy of his prior description ofthe suspect. Anderson previously describedLewis as ablack male, approximately 30,6-feet-3, approximately 225 pounds. JA 563.His description of Lewis at trial was some-what different - a light-skinned male with a


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beard. Id. at 533-35, 564. Anderson also told po-lice that he had seen the third perpetrator af-ter the robbery on Germantown Avenue, thenlater recanted, saying he was mistaken. Id. at 573-75. The inconsistencies evident in Ander-sons testimony call into question the reliabil-

ity of his identification of Lewis.

The fourth Biggers factor also warns of a riskof misidentification because four years passedbetween the robbery and Andersons identifi-cation of Lewis in the holding cell. In the mean-time, Anderson failed to identify Lewis in aphoto array two years after the robbery. Emanu-ele is once again instructive. 51 F.3d at 1129-30. In Emanuele, [*60] like here, the wit-nesses benefited from an unobstructed viewof the perpetrators during the bank robbery. The

second prong of the identification due processanalysis, reliability, turned on whether the wit-nesses had previously made an accurate iden-tification of the defendant and, therefore, had in-dependent grounds for making identificationsat trial. Id. at 1131. Despite the witnesses ad-equate opportunity to view the perpetratorsduring the crime, the first witnesss failure toidentify the defendant in a photo array prior tothe suggestive encounter undermined the reli-ability of her in-court

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identification and revealed a substantial risk ofmisidentification. Id. The in-court identifica-tion of the other witness, however, was permis-sible because she had previously identifiedthe defendant in a photo array. Id. Andersonsprevious failure to identify Lewis before seeinghim with the other appellants in the holdingcell before trial leads us to conclude that the riskof misidentification was substantial. For thatreason, Andersons identification of Lewisshould not have been admitted at trial.

We conclude, nonetheless, that the admissionof Andersons identification was harmless er-ror. [*61] Under the harmless error test forconstitutional violations articulated in Chap-man v. California, the Government must provebeyond a reasonable doubt that the error com-plained of did not contribute to the verdict ob-

tained. 386 U.S. 18, 24 (1967).[T]he rel-evant question under Chapman is not whether,in a trial that occurred without the error, aguilty verdict would surely have been ren-dered, but whether the guilty verdict actuallyrendered in this trial was surely unattributable to

the error. Virgin Islands v. Martinez, 620F.3d 321, 337 (3d Cir. 2010) (quotation marksomitted). In deciding whether to exercise theCourts discretion to consider an error to beharmless,the controlling considerations are thelength and complexity of the record, whetherthe harmlessness of the error or errors found iscertain or debatable, and whether a reversalwill result in protracted, costly, and ultimatelyfutile proceedings in the district court. UnitedStates v. McLaughlin, 126 F.3d 130, 135 (3dCir. 1997) (quotation marks omitted), abro-

gated on other grounds by United States v.Fiorelli, 133 F.3d 218 (3d Cir. 1998).

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In light of the overwhelming evidence againstLewis in this case, we conclude [*62] that theerror was harmless and does not compel rever-sal. Another eyewitness, Vasquez, was abso-lutely certain about his identification ofLewis as the third robber. Furthermore,Sheronda Gaskin testified that Lewis was with

Shavers and White at Ebony Gists housethe night before the robbery when a fourth mantold them of a house in Jeanettes neighbor-hood that had a lot of money. JA 1430, 1441.Gaskin observed the three appellantsget pre-pared to rob the house by donning hoodedsweatshirts and masks, andloading up theirguns. Id. at 1431. The following morning,Lewis arrived at Gists home with bruises andwas telling everybody how he got away. Id.at 1435. He explained to Gaskin thatthey hadtried to rob the house and thathe went out

through the back. Id. at 1436. In a telephoneconversation on November 18, 2005, Whitewarned Lewis that the authorities were search-ing for him and tokeep a low profile. Id. at2136. Later in the conversation, Lewis andShavers discussed how Lewis had escaped af-ter the robbery. Id. at 2139. We are convincedthat there was ample evidence in the recordof Lewiss culpability such that the erroneous


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admission of Andersons identification[*63] of Lewis was harmless error beyond a rea-sonable doubt.

E.

Finally, White appeals the denial of his motionto suppress Rickeys identification of him atthe police station, in a lineup, and in court onthe basis that Rickey did not have sufficient op-portunity to see Whites face at the speak-easy. Whites challenge to Rickeys identifica-tion is unsuccessful because he does notexplain why any of the procedures used by lawenforcement were unnecessarily suggestive.In

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addition, Rickeys identification at the policestation is unchallengeable under Perry becausehe identified White on his own accord, with-out prompting by the police. See 132 S. Ct. at728. For these reasons, the District Courtdid not abuse its discretion in admitting Rick-eys identifications of White.

V. Prison Telephone Conversations

Lewis challenges the District Courts denial ofhis pretrial motion to suppress a telephone

conversation recorded at the prison on Novem-ber 15, 2005 between Lewis, who was not im-prisoned at the time, White, and others. Lewisargues that recording the call violated hisFourth Amendment right to be free of unreason-able searches because he was unaware thatthe call would be recorded and, thus, [*64] hehad a reasonable expectation of privacy inthe call.

We review the District Courts decision to ad-mit evidence for an abuse of discretion. UnitedStates v. Serafini, 233 F.3d 758, 768 n.14 (3dCir. 2000). The Fourth Amendmentprotects theright of the people to be secure in their per-sons, houses, papers, and effects, against unrea-sonable searches and seizures. U.S. Const.amend. IV. Fourth Amendment protections arenot triggered unless the state monitors an area inwhich the defendant has aconstitutionally pro-tected reasonable expectation of privacy.

New York v. Class, 475 U.S. 106, 112 (1986).Determining whether an individuals expecta-tion of privacy is justifiable under the FourthAmendment involves two inquiries:(1) whetherthe individual demonstrated an actual or sub-jective expectation of privacy in the subject of

the search or seizure; and (2) whether this ex-pectation of privacy is objectively justifiable un-der the circumstances. Free

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Speech Coal., Inc. v. Atty Gen., 677 F.3d 519,543 (3d Cir. 2012).

Under the specific circumstances presented inthis case, Lewis did not have an objectively rea-sonable expectation of privacy in his tele-

phone conversation with White. [*65] Lewisknew where White was incarcerated when Whitecalled Lewis, as he had agreed to send Shav-ers and White mail there. Furthermore, Lewiswas previously incarcerated at the sameprison. Thus, he would have received a hand-book alerting him that all telephone calls wererecorded and been exposed to a documenthanging in the common areas that notified pris-oners that their calls might be monitored andrecorded. In these circumstances, Lewis shouldhave known that all outgoing prisoner tele-

phone calls were monitored and recorded. SeeUnited States v. Sababu, 891 F.2d 1308, 1329(7th Cir. 1989) (holding that a non-prisonerhad no reasonable expectation of privacy whenspeaking to a prisoner on the telephone be-cause, as a frequent visitor to the prison, shewaswell aware of the strict security measuresin place and that the Code of Federal Regu-lations puts the public on notice that prison of-ficials are authorized to monitor prisonerstelephone calls); United States v. Harrison, 986F. Supp. 280, 281-82 (M.D. Pa. 1997) (observ-

ing that the defendant had no subjective expec-tation of privacy because it was clear fromthe content of the telephone calls and hisguarded language that he knew [*66] he wasspeaking with a prisoner and that the calls wouldbe monitored). We hold, therefore, that Lew-iss Fourth Amendmentchallenge to the admis-sion of the telephone call transcript is unavail-ing.7


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7The Government devotes much of its brief toarguing that the recording of Lewiss conver-sation was not a

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VI. The Post Office Robbery EvidenceAll three appellants assert that the DistrictCourt erred in permitting the Government to in-troduce evidence that they were involved inthe uncharged armed robbery of a post office.Although the Government had originally movedto admit more details about the post office rob-bery investigation, the evidence elicited attrial was essentially limited to the followingfacts. Approximately twelve hours prior to thespeakeasy robbery, at 6:30 p.m. on November 7,

2005, a post office was robbed in West Phila-delphia. Postal Inspector Kathleen Brady testi-fied that on November 17, 2005, postal inspec-tors executed a search warrant of Gists housebased on information that the post office rob-bery had been committed by people stayingthere. Investigators also began inquiries

violation of Title III of the Omnibus Crime Con-trol and Safe Streets Act of 1968, which pro-hibits [*67] the interception ofany wire, oral,or electronic communication, including tele-

phone conversations. 18 U.S.C. 2511(1). Weneed not delve into that topic, however, be-cause Lewis does not claim a violation of thatAct.

White also states in his brief, without argu-ment, that he joins Lewiss challenge to theprison telephone call. Whites challenge is un-convincing, however, as he engaged in othercalls from the prison prior to the November 15call during which he was specifically warnedthat prison telephone calls might be monitored

and recorded. JA 2114. For the reasonsstated above, prisoners do not have a reason-able expectation of privacy when speaking on aprison telephone, especially where a warning hasbeen given.

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into the people who spent time at Gists house,including Lewis, Shavers, and White. The

search produced a cellular phone belonging toa customer from the speakeasy. Postal inspec-tors also subpoenaed Shaverss and Whites re-corded prison telephone calls and visitor logs inconnection with the investigation.8 The Gov-ernment also offered Gists testimony that, on

the night of the post office robbery, four indi-viduals ran into her house and hid in her backroom from a [*68] helicopter that was scan-ning the area. The next morning, four men, in-cluding Lewis, were in her house and one ofthe men (not Lewis) was counting money. Gisttestified that a neighbor stopped by later andtoldSnoop (Kenneth Ford) that he was a sus-pect in the post office robbery.

We review the District Courts decision to ad-mit evidence for abuse of discretion, meaning

thatwe must uphold the District Court un-less its ruling was arbitrary or irrational. UnitedStates v. Green , 617 F.3d 233, 239, 251- 52 (3dCir. 2010) (quotation marks omitted). Fed-eral Rule of Evidence 404(b) limits the admis-sion of evidence of other crimes, wrongs, or actsto prove a persons character in order to show that on a particular occasion the personacted in accordance with the character. Suchevidencemay be admissible for another pur-pose, such as proving motive, opportunity, in-tent, preparation, plan, knowledge, identity,absence of mistake, or lack of accident. Id. Thethreshold inquiry a court must make before ad-mitting similar acts

8White claims that the transcripts of prison tele-phone calls that were admitted into evidencein this case implicated the three appellants in thepost office robbery. [*69] There is no men-tion of the post office robbery in those tran-scripts, however.

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evidence under Rule 404(b) is whether that evi-dence is probative of a material issue otherthan character. Huddleston v. United States,485 U.S. 681, 686 (1988). We have long consid-ered Rule 404(b) to be inclusionary such thatevidence of other wrongful acts was admis-sible so long as it was not introduced solelyto prove criminal propensity. Green, 617 F.3d


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at 244.

For similar act evidence to come in under Rule404(b), there must be(1) a proper eviden-tiary purpose; (2) relevance under Rule 402; (3)a weighing of the probative value of the evi-

dence against its prejudicial effect under Rule403; and (4) a limiting instruction concerning thepurpose for which the evidence may beused. United States v. Butch , 256 F.3d 171,175 (3d Cir. 2001). Evidence is relevant if(a)it has any tendency to make a fact more orless probable than it would be without the evi-dence; and (b) the fact is of consequence in de-termining the action. Fed. R. Evid. 401. Pursu-ant to Federal Rule of Evidence 403, we mustalso consider whether the probative value of theevidence issubstantially outweighed by a dan-

ger of . . . unfair [*70] prejudice, confusingthe issues, misleading the jury, undue delay,wasting time, or needlessly presenting cumula-tive evidence.

Applying this framework, we conclude that theDistrict Court did not abuse its discretion in al-lowing in the limited evidence concerning thepost office robbery. First, evidence of the on-going investigation into the post office robberywas relevant and was offered for proper evi-dentiary purposes. Inspector Bradys tes

us v shavers, lewis and white

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