79 F.3d 338 (2nd Cir. 1996), 559, United States v. Millar

Docket Nº:559, Docket 95-1142.
Citation:79 F.3d 338
Party Name:UNITED STATES of America, Appellee, v. Samuel Ignatius MILLAR, also Known as Andre Singleton, also Known as Frank Saunders, Thomas F. O'Connor, and Charles McCormick, Defendants, Patrick Moloney, Defendant-Appellant.
Case Date:April 01, 1996
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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79 F.3d 338 (2nd Cir. 1996)

UNITED STATES of America, Appellee,

v.

Samuel Ignatius MILLAR, also Known as Andre Singleton, also

Known as Frank Saunders, Thomas F. O'Connor, and

Charles McCormick, Defendants,

Patrick Moloney, Defendant-Appellant.

No. 559, Docket 95-1142.

United States Court of Appeals, Second Circuit

April 1, 1996

Argued Dec. 14, 1995.

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[Copyrighted Material Omitted]

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Appeal from a conviction and sentence for conspiracy to possess money stolen from a bank, in the United States District Court for the Western District of New York (David G. Larimer, Judge ) following a jury trial. Remanded for factual finding and resentencing, if appropriate, based on U.S.S.G. § 2B1.1(b)(7)(B), concerning the amount of gross receipts derived by appellant.

William Clauss, Assistant Federal Public Defender, Western District of New York, Rochester, New York (Jonathan W. Feldman, Federal Public Defender, of counsel), for Defendant-Appellant.

Christopher A. Buscaglia, Assistant United States Attorney, Western District of New York, Rochester, New York (Patrick H. NeMoyer, United States Attorney; Christopher V. Taffe, Assistant United States Attorney; of counsel), for Appellee.

Before: WINTER, WALKER, and CABRANES, Circuit Judges.

WINTER, Circuit Judge:

Patrick Moloney, a Melkite Catholic priest, appeals from his conviction and sentence after an eight-week jury trial before Judge Larimer. Moloney was convicted of a single count of conspiracy to possess money stolen from a bank in violation of 18 U.S.C. § 371 and was sentenced to fifty-one months imprisonment, three years supervised release, and a fifty-dollar special assessment. He appeals on a variety of grounds, including a challenge to the district court's calculation of his sentence based on receipt of 2.2 million dollars in proceeds from a crime affecting a financial institution. See U.S.S.G. § 2B1.1(b)(7)(B). 1 Moloney contends he did not personally possess that amount because access to the money was shared with co-defendant Samuel Millar. We remand for factual findings regarding the amount of gross receipts derived by Moloney. We affirm with respect to all other claims, except one that is dismissed for lack of jurisdiction.

BACKGROUND

We view the evidence in the light most favorable to the government. On the evening of January 5, 1993, three employees of the Brinks Armored Car Company were on duty at the Brinks money depot in Rochester, New York. Shortly after 6:00 p.m., two of them were accosted by two masked, armed gunmen and forced to lie face-down on the floor of the vault room. The third employee, Thomas O'Connor, had left the vault moments earlier. While bound and blindfolded on the floor, the two employees heard the robbers loading money into a vehicle apparently parked in the depot's garage. After about an hour, the robbers left the premises, and the two Brinks employees freed themselves. Approximately 7.4 million dollars, and O'Connor, were missing.

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O'Connor told police that he had been taken captive by the robbers but quickly became a suspect in the robbery. In considering O'Connor's possible role, an FBI Special Agent recalled an earlier investigation that revealed an association between O'Connor and Millar, an illegal Irish alien. Law enforcement officers established surveillance of Millar in the New York City area. FBI agents observed Millar meeting with Moloney at various locations, including Millar's business and an apartment at 330 First Avenue in Manhattan. The FBI also learned that Moloney had purchased a new Ford Explorer truck on June 18, 1993 and had insured the vehicle in his name, although the vehicle was driven exclusively by Millar. On August 5, 1993, Millar was seen carrying several duffel bags from his residence, loading them into the Explorer, driving to a First Avenue apartment building, and carrying the bags into the building. Agents observed shapes resembling bundled money in the bags and began to suspect that Millar was hiding the stolen Brinks money.

On August 6, 1993, agents observed Moloney entering the First Avenue apartment building. He was seen entering the building on six other occasions in August, twice in the company of Millar. Investigators learned that in July Moloney arranged with co-defendant Charles McCormick to use McCormick's apartment, number 10D. On November 6, 1993, FBI technicians installed in the tenth floor common hallway a closed circuit television camera (CCTV) that enabled investigators to view the doorway to the apartment. That same day, agents observed Moloney on CCTV entering Apartment 10D with two folding card tables. Moloney remained there for 36 minutes and then left with a loaded knapsack. On November 7, agents saw Moloney and Millar enter the apartment together. Moloney had an electronic money counting machine under his arm. After Moloney left by car, agents saw him counting a two-inch thick stack of currency at a traffic light. On November 9, Moloney was seen leaving Apartment 10D with a money belt, which he tied around his waist in the hallway.

Between November 6 and 11, Moloney spent six and one-half hours and Millar spent almost nine hours in Apartment 10D. During six of those hours, they were together. Each had his own key to the apartment, which had a newly installed lock. On November 11, Millar and Moloney met with a real estate agent in Westchester County, New York regarding Millar's search for a home in the $300,000 price range. Moloney claimed that financing for the home would be arranged through his church.

Apartment 10D was searched on November 11 and 12. Investigators found 2.1 million dollars hidden in a locked bedroom closet. From a list of serialized new bills stolen from the Brinks depot, agents identified $107,980 as money stolen during the January 5 robbery in Rochester. Agents also found a suitcase that had Moloney's then-current address and telephone number on it. The suitcase contained $849,000. A separate bag of cash contained a hair that possessed physical characteristics similar to Moloney's hair. Moloney's fingerprints were found on a glass in the bedroom. A money counter, rubber gloves, a calculator, two pens, and several pieces of paper with money figures in handwriting similar to Moloney's were found on card tables in the bedroom. The calculator's vinyl wallet contained a card depicting a religious figure from the Melkite Catholic Church.

Investigators searched Moloney's residence and found documents bearing aliases used by Millar and others. They also found license plates to a minivan owned by the mother of Millar's children, which agents had earlier observed Millar driving. Although the minivan itself had disappeared, the minivan's model had wheelbase measurements that corresponded with those at the scene of the Brinks robbery. The search of Moloney's residence also produced a list of loans that he had made and a description of real estate in Florida that he had offered to buy for $150,000 cash. In a safe in Moloney's bedroom, agents found approximately $168,000 in cash. Some of the stacks of bills bore numerical figures in ink resembling the figures found in Apartment 10D. A forensic evaluation of the chemical composition of the ink on the bills in Moloney's bedroom determined that it was consistent with ink on the

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notations and in the pens found in Apartment 10D.

Moloney was arrested at his residence. In a post-arrest statement, he claimed that he began using Apartment 10D only in September, could not recall whether he carried a money counting machine into the apartment, had no knowledge of locked closets within the apartment, and never saw any money there.

After three days of deliberation, the jury convicted Moloney of conspiracy to possess stolen money in violation of 18 U.S.C. § 371. At sentencing, the district court denied Moloney's motion for a downward departure and adopted findings in the Presentence Report (PSR) that enhanced Moloney's sentence under the Sentencing Guidelines. Moloney was sentenced to fifty-one months imprisonment.

Moloney claims reversible error in: (i) the district court's emphasis of Moloney's status as a priest during jury selection; (ii) its dismissal of a juror during trial; (iii) the denial of Moloney's request for a hearing on the validity of the search warrants; (iv) the prosecution's summation; (v) the insufficiency of the proof underlying conviction for conspiracy; (vi) the court's supplemental jury instructions; (vii) the court's refusal to grant a downward departure in light of Moloney's charitable works and public service; and (viii) the application of U.S.S.G. § 2B1.1(b)(7)(b), which relates to crimes that affect financial institutions and from which the defendant derived more than 1 million dollars in gross receipts, to increase Moloney's offense level and enhance his sentence.

DISCUSSION

  1. Jury Selection

    Moloney challenges the district court's voir dire inquiry into potential jurors' religious prejudices. However, the Supreme Court has held that "[w]ithout an adequate voir dire the trial judge's responsibility to remove prospective jurors who will not be able impartially to follow the court's instructions and evaluate the evidence cannot be fulfilled.... [F]ederal judges have been accorded ample discretion in determining how best to conduct ... voir dire." Rosales-Lopez v. United States, 451 U.S. 182, 188-89, 101 S.Ct. 1629, 1634, 68 L.Ed.2d 22 (1981). Therefore, it was well within the district court's discretion to conclude that, in the trial of a priest, an inquiry into religious bias was appropriate to ensure an impartial jury.

  2. Juror Dismissal

    The district court also did not abuse its discretion in dismissing a juror whose father died suddenly during the trial. "[S]ubstitution of an alternate juror for reasonable cause is the prerogative of the court and does not require the consent of any...

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