U.S. v. Elias, Docket No. 01-1176.

• Citation: 285 F.3d 183
• Decision Date: 25 March 2002
• Docket Number: Docket No. 01-1176.
• Parties: UNITED STATES of America, Appellee, v. Alex ELIAS, also known as Puff, Defendant-Appellant, Luis Otero, also known as Gardana, Defendant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

285 F.3d 183

UNITED STATES of America, Appellee, v. Alex ELIAS, also known as Puff, Defendant-Appellant, Luis Otero, also known as Gardana, Defendant.

Docket No. 01-1176.

United States Court of Appeals, Second Circuit.

Argued: November 26, 2001.

Decided: March 25, 2002.

COPYRIGHT MATERIAL OMITTED

Colleen P. Cassidy, The Legal Aid Society, Federal Defender Division, New York, NY, for Appellant.

Susan Corkery, Assistant United States Attorney for the Eastern District of New York, New York, NY (Alan Vinegrad, United States Attorney, and Peter A. Norling, Assistant United States Attorney, on the brief), for Appellee.

Before: JACOBS, SACK, KATZMANN, Circuit Judges.

JACOBS, Circuit Judge.

Defendant Alex Elias appeals from a judgment entered in the United States District Court for the Eastern District of New York (Ross, J.), convicting him, after a jury trial, of robbery and conspiracy to commit robbery, in violation of 18 U.S.C. § 1951 (the "Hobbs Act"). Elias argues (1) that the trial evidence was insufficient to establish the jurisdictional element of the Hobbs Act conviction because the government failed to prove the requisite effect on interstate commerce and (2) that improper remarks made by the prosecutor during rebuttal summation were prejudicial.¹

As to the jurisdictional predicate, there is evidence of an impact on interstate commerce, and although it is thin, it does not fail the de minimis test that applies to the question. As to the prosecutor's remarks, the prosecutor referenced a point made in summation by the defense — that the victim of the assault, who could not identify the assailant, was no witness — and characterized it as an "insult" to the victim and a sign of "desperation" on the part of the defense. While these remarks grossly misrepresented the point urged in the defense summation, and were calculated to inflame the jury, we conclude that no retrial is justified because (1) the remarks were an aberration in an otherwise fair proceeding; (2) the defense summation included comments on the same witness that could fairly have provoked the prosecutor's "insult" comment; (3) some steps were taken to mitigate any impact of the remarks cited by the defendant; and (4) conviction was certain even in the absence of the claimed misconduct.

BACKGROUND

The prosecution arose out of an October 24, 1998, robbery of a neighborhood grocery store in Queens, New York, the Aybar Grocery. The government undertook to show at trial that the stick-up affected interstate commerce because the grocery store sold beer brewed in Mexico and the Dominican Republic and fruit grown in Florida and California. Construing the evidence in the light most favorable to the government, see United States v. Mapp, 170 F.3d 328, 331 (2d Cir.1999), the evidence presented at trial was as follows.

Juan Mora, employed at Aybar Grocery, was preparing to close for the night when, at around 11:00 p.m., a masked gunman grabbed him by the neck, spun him around, and threw him face down on the floor. Also ordered down was José Batista, a friend of the store's owner. The gunman then struck Mora with the gun while demanding Mora's keys and asking where the money was kept.

Mora kept his eyes closed throughout the robbery and never saw the robbers' faces, but he heard them talking in Spanish. The robbers took approximately $1400 in cash, along with cigarettes, MetroCards, calling cards, and food stamps.

A 911 call alerted police that two Hispanic men were fleeing a robbery in progress and gave the make, color, and New York license plate number of their car. Soon after receiving a radio transmission on the robbery, Officer David Rodriguez spotted the getaway car at a red light, and pulled his patrol car head-on with it. As Rodriguez's partner got out to investigate, the getaway car sped off around the patrol car. Rodriguez attempted to pursue but stopped when his partner was grazed by the open door of the patrol car. Rodriguez broadcast the direction of the getaway car and soon resumed pursuit. Within a few minutes, he spotted the car abandoned near a housing project. Retrieved from the car were a hat and one glove, as well as items matching those stolen from Aybar Grocery.

The police began a search for the suspects, who were described as wearing leather jackets. Officer Rafael Correa spotted two Hispanic men in T-shirts leaving the housing project and heading in the direction of a nearby grocery. Correa's suspicion was aroused because the men were without jackets on a chilly night. He and his partner approached the coatless men as they reached the store; one of them, Elias, gave his name and explained that he was out of breath because he had come from a party in a building in which the elevators were out of order.

Officer Rodriguez arrived and identified Elias as the man whose face he had seen behind the wheel when the cars were stopped head-on. He could not identify the other person. Elias was arrested. A leather jacket was later found discarded near the grocery store with one glove in the pocket.

At trial, the government called a jailhouse informant to testify pursuant to a cooperation agreement. The informant had a prodigious criminal record — including numerous armed robberies, several carjackings and attempted murders, and two arsons — and once gave perjured testimony in an attempted murder trial. According to the informant, Elias admitted committing the robbery with his cousin and recounted details such as the events of the chase, the glove left behind in the car, and the discarding of the leather jacket. When Elias's cousin was arrested, Elias introduced him to the informant as his partner in the robbery.

The government relied at trial chiefly on Officer Rodriguez's identification, the informant's testimony, and a fingerprint of Elias's cousin (lifted from a bag in the getaway car). According to a forensic expert, the gloves yielded insufficient DNA for testing; the leather jacket yielded DNA, but not of Elias or his cousin; and the hat yielded DNA from more than one person, but the test results did not point to Elias or exclude him. The expert testified however, that a hat or jacket may not yield DNA of the wearer.

The defense summation, consistent with the defense theory of mistaken identity, emphasized that Mora had his eyes closed and could not see the robbers, who in any event were masked:

What's notable about this case is that there is no eyewitness to the robbers. There were eyewitnesses to the robbery, so to speak. Nobody is denying that a robbery took place. But there was no witness in the store who saw the robbers....

Juan Mora witnessed the event but never saw the robbers. In terms of considering the testimony that Mr. Mora gave, I think that you have to evaluate it in terms of what his observations were and what his memory of the event was. In terms of his observations he told you, he saw nothing. He kept his eyes closed for most of the event. He didn't even see — he certainly didn't see the faces, didn't even see the body types of the robbers. He said that his eyes were always closed.

Now, we all have sympathy for what Mr. Mora went through.... But the issue which you have to address is what information did he provide you that assists you in determining who committed this crime? He certainly doesn't provide any information about who the robbers were. All he saw was a mask.

(Emphases added.) In her rebuttal summation, the prosecutor characterized the foregoing defense argument as an insult to the victim and a tactic of desperation:

To say that Juan Mora was not a witness to this robbery, a man who was pistol whipped by the defendant and his coconspirator. . ., is an insult.

To say that the man who was terrorized, but couldn't see the faces because the perpetrators were wearing masks, is not a witness to the crime, shows how desperate the defendant is.

The prosecutor went on to rebut point by point other alleged weaknesses in the proof against Elias.

Citing the prosecutor's rebuttal summation, the defense moved unsuccessfully for a mistrial.

DISCUSSION

A. Interstate Commerce

Elias argues that the evidence was insufficient to establish the jurisdictional element of the Hobbs Act conviction because the government failed to prove the requisite effect on interstate commerce. Heavy as a defendant's burden is on such an appeal, see United States v. Leslie, 103 F.3d 1093, 1100-01 (2d Cir.1997), Elias is assisted somewhat by the decision to prosecute as a federal offense the stick-up of a neighborhood grocery store.

The Hobbs Act, insofar as pertinent here, states:

(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

(b) As used in this section —

* * * * * *

(3) The term "commerce" means commerce within the District of Columbia, or any Territory or Possession of the United States; all commerce between any point in a State Territory, Possession, or the District of Columbia and any point outside thereof; all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction.

18 U.S.C. § 1951 (emphases added).

In a Hobbs Act prosecution, proof that "commerce [wa]s affected is critical since the Federal Government's jurisdiction of this crime rests only on that interference." Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). "There is nothing more crucial, yet so strikingly obvious, as the need to prove the jurisdictional element of a crime." Leslie, 103 F.3d at 1103. At the same time, it is well established that the burden of...