U.S. v. Wilkerson

Citation361 F.3d 717
Decision Date18 March 2004
Docket NumberDocket No. 03-1177.
PartiesUNITED STATES of America, Appellee, v. Linwood WILKERSON, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

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

Adam Abensohn, Assistant United States Attorney for the Eastern District of New York, Brooklyn, N.Y. (Susan Corkery and Leonard Lato, Assistant United States Attorneys, of counsel; Roslynn R. Mauskopf, United States Attorney, on the brief), for Appellee.

Before: MINER, CALABRESI and STRAUB, Circuit Judges.

MINER, Circuit Judge.

In the early evening hours of September 8, 1997, Bilberto Lopez and his brother, Natividad, were the victims of a "hold up" while they were moving a stove into the basement of a multi-dwelling residential building that they owned in Brooklyn. Instead of complying with their assailant's demand for money, the Lopez brothers resisted. Consequently, both brothers were shot, and Bilberto died on the basement floor from a gunshot wound. Their assailant fled without recovering the $350 to $400 in cash that Bilberto was carrying on his person.

Qasim Duffy and defendant-appellant Linwood Wilkerson were subsequently tried separately in the United States District Court for the Eastern District of New York (Block, J.) for their respective roles in the hold up: Duffy, for being the hold up man who allegedly attempted to rob the Lopez brothers and for killing Bilberto; and Wilkerson, for his alleged role in (i) planning the hold up, (ii) aiding Duffy's use of the gun during the hold up, (iii) driving the getaway car used in the hold up, and (iv) attempting to intimidate a neighbor who had both overheard an incriminating conversation between Duffy and Wilkerson and taken a photograph of Duffy shortly before the hold up. Duffy was acquitted. Wilkerson was convicted on: (i) one count of conspiring with Duffy to interfere with commerce by robbery, in violation of the Hobbs Act, 18 U.S.C. §§ 1951 & 3551 et seq.; (ii) one count of aiding and abetting Duffy's attempt to interfere with commerce by robbery, in violation of the Hobbs Act, 18 U.S.C. §§ 2, 1951 & 3551 et seq.; (iii) one count of aiding and abetting Duffy in his carrying of a firearm during, and in relation to, a crime of violence that resulted in the death of Bilberto, in violation of 18 U.S.C. §§ 2, 924(c)(1), 924(j)(1), 1111 & 3551 et seq.; (iv) one count of attempted witness tampering, in violation of 18 U.S.C. §§ 2, 1512(b)(2)(A) & 3551 et seq.; and (v) one count of being an accessory after the fact to the conspiracy and the attempt to interfere with commerce by robbery, in violation of 18 U.S.C. §§ 3 &amp 3551 et seq. Wilkerson was sentenced principally to a prison term of 211 months.

In this appeal, we are called upon to address the following arguments raised by Wilkerson that: (i) the evidence was legally insufficient to support the jury's finding that he aided and abetted Duffy in his carrying of the gun used to kill Bilberto; (ii) the evidence was legally insufficient to support the jury's finding that the attempted robbery/conspiracy, if successful, would have affected interstate commerce, as required by the Hobbs Act; (iii) the District Court erroneously instructed the jury concerning the interstate commerce element of the Hobbs Act; (iv) the District Court abused its discretion in precluding Wilkerson's counsel from eliciting during the cross-examination of two Government witnesses certain inconsistencies between their testimony at Wilkerson's trial and their testimony during Duffy's earlier trial; and (v) the District Court erred in admitting certain testimony from a Government witness over objections from Wilkerson that such testimony constituted improper vouching for another Government witness. For the reasons that follow, we find all of these arguments to be without merit and affirm the judgment of conviction.

BACKGROUND

Viewing 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: The Lopez brothers owned an eight-unit residential building located at 141 Hull Street in Brooklyn, New York. Two of the eight dwellings were occupied by the Lopez brothers and their families, and the remaining six units were rented out to residential tenants. The basement of the building was used exclusively by the Lopez brothers to store materials used in their local landscaping business as well as personal items. In addition to their landscaping business, the Lopez brothers also worked as part-time dishwashers at a TGI Friday's restaurant on the weekends.

Wilkerson was a plumber who lived in an apartment located at 139 Hull Street. The Lopez brothers had hired Wilkerson several times in the past to perform plumbing work at their building and to repair the van that they used in their landscaping business. Two months before the hold up, the Lopez brothers called Wilkerson to come to their building for an emergency repair job to fix a broken pipe. When he did not arrive quickly enough, the Lopez brothers hired another plumber to do the job. When Wilkerson eventually arrived and discovered that another plumber was doing the work, he became very upset and began arguing with the Lopez brothers. To defuse the situation, the Lopez brothers agreed to pay him, and he left.

Shortly before the hold up, Sheri Ligon (who lived at 143 Hull Street) was taking pictures of neighborhood children in front of Wilkerson's building. Running low on film, Ligon walked to the corner store located at the intersection of Rockaway Avenue and Hull Street to purchase more film. On her way to the store, she saw Wilkerson, his wife, and a man who she later identified as Duffy all sitting on the stairs leading up to 147 Hull Street. As she walked passed them, Ligon overheard Wilkerson say to Duffy, "Wait for them to go inside, and go inside and get what you gotta get and come back out." According to Ligon, Wilkerson saw her as she was walking past and, before Duffy could respond, Wilkerson "looked up and [said] shush, be quiet, it's too many ears."

As Ligon returned from purchasing her film, she saw that Wilkerson and Duffy were no longer in front of 147 Hull Street. But, as she began again photographing the neighborhood children, Ligon observed Duffy standing in front of 139 Hull Street talking to some of her neighbors. At that point, Duffy asked Ligon if she would take his picture so that he could send it to a friend of his who was incarcerated in upstate New York. When she demanded five dollars for the picture and asked Duffy how she could get it to him in light of the fact that they did not know each other, he replied that she should give the picture to Wilkerson the next time she saw him and that Wilkerson would pay her the five dollars. Satisfied with this response, Ligon took Duffy's picture, after he first removed his glasses. (Ligon's picture of Duffy was subsequently admitted as an exhibit at Wilkerson's trial and showed Duffy holding a pair of brown glasses with thick lenses.)

After she took Duffy's picture, Ligon began talking to some of the other neighbors who were standing in front of 139 Hull Street, whereupon Duffy stood up, walked into the building, and proceeded to enter Wilkerson's ground-floor apartment. About five minutes later, Duffy returned wearing a white windbreaker jacket with red, yellow, and blue on the sleeves and the words "Peli Peli" printed on the front of the jacket. Ligon testified that Duffy was "holding on to his left sleeve ... of his jacket" and that she thought he was holding something inside the left sleeve but could not tell what it was. Ligon then asked Duffy: "What [did] you steal out of those people's house?" He replied: "What me? I didn't steal nothing out of their house." Ligon then asked Duffy: "What [did] you put inside of your jacket?" He then replied: "[`N]othing,[']" and, according to Ligon, "started shaking his sleeve down, and it was like hanging. He was holding onto the bottom of the sleeve to keep whatever it was he was putting in the sleeve from falling out." According to Ligon, Duffy then "started ... lifting up his shirt and opening up the jacket to show [her] that he didn't take anything." She then returned to taking pictures of the children.

At around 6:50 p.m., the Lopez brothers and a twelve-year-old boy named Martin "David" Nunez were moving a stove from the hallway of their building into the basement. When they reached the basement, they closed behind them the door leading to the outside. Shortly thereafter, Natividad heard a knock at the basement door and then a voice from behind the door — a person inquiring about renting one of the apartments in the building. When Natividad opened the door, a man entered the basement, pointed a gun at them, announced that "this [was] a hold up," and demanded that they give him whatever money they had. Instead of complying, the Lopez brothers attempted to wrestle the gun away from their assailant while Nunez ran up the stairs. During the ensuing struggle, each of the brothers was shot, and Bilberto was fatally wounded. The robber then ran out of the building without having taken any money. Natividad testified at trial that the robber was black; was wearing a shirt that was "yellowish, sort of yellow[,] ... and white trousers"; and wearing brown eyeglasses with thick lenses. The police subsequently recovered a pair of blood-covered, brown glasses from the basement. Natividad could not recall whether his assailant was wearing a jacket and was unable to identify Duffy as the robber. Nunez, however, did identify Duffy as the robber.

A few minutes later, Ligon heard the superintendent of her building yelling at her to get the children out of the street because the superintendent had heard...

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