U.S. v. Gelzer

• Decision Date: 23 March 1995
• Docket Number: 768 and 475,D,Nos. 459,s. 459
• Parties: 41 Fed. R. Evid. Serv. 1038 UNITED STATES of America, Appellee, v. Ronald GELZER, Robert L. Gelzer and Leon D. Griffin, Defendants-Appellants. ockets 94-1089 to 94-1091.
• Court: U.S. Court of Appeals — Second Circuit

Page 1133

50 F.3d 1133

41 Fed. R. Evid. Serv. 1038

UNITED STATES of America, Appellee, v. Ronald GELZER, Robert L. Gelzer and Leon D. Griffin Defendants-Appellants.

Nos. 459, 768 and 475, Dockets 94-1089 to 94-1091.

United States Court of Appeals Second Circuit.

Argued Nov. 23, 1994.

Decided March 23, 1995.

Edward P. Jenks, Mineola, NY, for defendant-appellant Ronald Gelzer.

Donald D. DuBoulay, New York City, for defendant-appellant Robert L. Gelzer.

Richard L. Herzfeld, New York City, for defendant-appellant Leon Griffin.

Douglas T. Burns, Asst. U.S. Atty., Brooklyn, NY (Zachary W. Carter, U.S. Atty., E.D.N.Y. and Susan Corkery, Asst. U.S. Atty., of counsel), for appellee.

Before JACOBS, CALABRESI, and PARKER, Circuit Judges.

JACOBS, Circuit Judge:

Village police officers noticed two men exit the Lynbrook, New York Post Office with six large canvas bags and enter a waiting car. The police followed the car and arrested the three occupants after a high-speed chase. Later, police retrieved a firearm from a spot at which the fleeing vehicle swerved during the pursuit. A jury convicted all three defendants on each of the five counts of the indictment: (1) conspiracy to commit armed postal robbery, in violation of 18 U.S.C. Sec. 371; (2) armed postal robbery, in violation of 18 U.S.C. Sec. 2114; (3) using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. Sec. 924(c)(1); (4) possession of a firearm by a person previously convicted of a felony, in violation of 18 U.S.C. Sec. 922(g)(1); and (5) possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. Sec. 922(k). We address virtually all of the challenges to various pre-trial, evidentiary and sentencing rulings, in particular the appropriateness of grouping closely-related counts for purposes of sentencing under Section 3D1.2 of the Guidelines.

Specifically, all three defendants contend on appeal that the district court erred by: (1) admitting circumstantial evidence establishing defendant Robert Gelzer's connection to the firearm used in the robbery, and (2) refusing to group Count Two (armed postal robbery) with Counts Four and Five (the "firearms counts") pursuant to Sec. 3D1.2 of the Sentencing Guidelines. In addition, defendant Ronald Gelzer challenges the admission of a post-arrest statement made prior to being read his Miranda rights. Robert Gelzer contends: (1) that there was insufficient evidence to convict him of the firearms counts; (2) that the government failed to establish a chain of custody for the firearm sufficient to support Count Three (Sec. 924(c)), and that the district court improperly commented on the insistence by the defense that the prosecution do so; (3) that the district court erred in refusing to grant a severance for Count Four (Sec. 922(g)); and (4) that he was erroneously classified as a career offender. Defendant Leon Griffin joins Robert Gelzer in challenging the failure to sever the felon-in-possession of a firearm count and the chain of custody issues and raises assorted complaints regarding alleged prosecutorial misconduct and evidentiary rulings of the district court.

We affirm the judgments of conviction in all respects except with regard to the grouping of closely-related counts, as to which we vacate and remand for resentencing.

I. Background

At approximately 6:00 p.m. on December 31, 1992, two men wearing dark clothing and black ski masks approached two United States Postal Service employees as they were loading six bags of registered mail onto a truck parked at the loading dock of the Lynbrook Post Office. One of the two masked men was carrying a handgun. The two entered the back of the postal truck, pushed the postal employees to the floor and threatened to kill them. After grabbing six bags of registered mail, the two exited the postal truck and headed for a car parked in a lot adjacent to the Post Office.

At that moment, two Lynbrook Village police officers, Detectives James Dillon and James Curtis, were on routine patrol in an unmarked car. The police officers observed two men exit the rear of the Post Office carrying canvas bags, and head to a blue Acura which had been idling in the adjacent parking lot. Suspicious, the detectives followed the Acura. After the vehicle made a prohibited right turn on red, the police officers ordered the car to pull over. As Dillon approached the car on foot, the Acura sped away. During the ensuing chase, the speeding Acura swerved to the curb at the intersection of Picadilly Downs and Scranton Avenue, and continued on until it collided with two vehicles. Three individuals fled from the wreck. Dillon pursued and apprehended Robert Gelzer. Robert's brother, Ronald Gelzer, was pursued by Curtis and was apprehended clutching a black ski mask. Two off-duty New York City Transit Police Officers apprehended Leon Griffin.

The Lynbrook Police searched the blue Acura and found six grey canvas U.S. registered mail bags containing approximately $60,000, and one black ski mask. At the intersection of Picadilly Downs and Scranton Avenue, where the Acura had swerved to the curb during the chase, police recovered a .38 caliber Smith & Wesson revolver bearing a defaced serial number.

On May 19, 1993, Magistrate Judge Michael L. Orenstein conducted a suppression hearing regarding a post-arrest statement made by Ronald Gelzer prior to the reading of his Miranda rights. While transporting Ronald Gelzer to the police station, Detective Fred Fusswinkle commented on the disruption of plans for New Year's Eve. Without further stimulus, Ronald Gelzer stated: "We're amateurs, not professionals." The magistrate judge denied the motion to suppress this statement, finding that, although it was made before Gelzer was advised of his Miranda rights, Detective Fusswinkle's comments about New Year's Eve were not "intended or likely to elicit an incriminating response from Mr. [Ronald] Gelzer." The district court ratified the magistrate judge's ruling.

At trial, the prosecution employed a long chain of circumstantial evidence to connect Robert Gelzer with the recovered firearm. The government maintained that the gun was tossed from the Acura when it veered to the curb at Scranton and Picadilly. The revolver was registered to the owner of Aztec Jewelers located in Atlanta, Georgia, and had been stolen during a 1992 armed robbery nearly six months earlier. The owner of Aztec Jewelers testified about the details of the 1992 robbery and the stolen firearm, but was unable to identify any of the perpetrators. Next, the government called an Atlanta detective who testified that he had executed a search warrant at an apartment previously occupied by Robert Gelzer. At the apartment, the detective recovered property stolen from Aztec Jewelers, but did not find the .38 Smith & Wesson taken in the robbery. Based on this evidence, the government argued that Robert Gelzer had acquired the firearm in Atlanta, transported it to New York, used it in the Lynbrook robbery and discarded it during the getaway.

II. Discussion

Between them, the defendants raise numerous arguments on appeal. We find no merit in any of them except the claim that the district court failed to group various counts properly for purposes of sentencing. We address that issue last.

Pre-Trial Issues

A. Admissibility of the Post-Arrest Statement

Ronald Gelzer argues that the district court erred in authorizing the admission of a post-arrest statement made prior to his receiving a Miranda warning. While en route to the Lynbrook Police station in a squad car, Ronald Gelzer declared, "We're amateurs, not professionals." He contends that this statement was made during custodial interrogation and is therefore inadmissible.

Statements made during custodial interrogation are generally inadmissible unless a suspect has first been advised of his rights. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). The act of interrogation encompasses "express questioning or its functional equivalent." Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980). The standard for determining the admissibility of statements made by suspects prior to the issuance of a Miranda warning is whether the words or actions of the law enforcement agents "were reasonably likely to elicit an incriminating response." Id. 384 U.S. at 302, 100 S.Ct. at 1690.

Ronald Gelzer's statement was not elicited by custodial interrogation. While transporting Ronald Gelzer to the Lynbrook Police station, Detectives Fusswinkle and DeSilva discussed between themselves the probability that the arrest and resulting paperwork would jeopardize their respective plans for New Year's Eve. The only question directed at Ronald Gelzer was an inquiry as to what Gelzer's New Year's plans had been. Neither the topic of this sociable question nor the general tenor of discussion created an atmosphere that was "reasonably likely to elicit an incriminating response." Id. Ronald Gelzer's claim of amateur status was volunteered, was not the product of interrogation, and was therefore admissible.

B. Pleading of Count Three (18 U.S.C. Sec. 924(c))

Robert Gelzer and Leon Griffin argue that Count Three of the indictment--charging them with using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. Sec. 924(c)(1)--failed to plead the requisite mens rea. At the time appellants raised this argument, the Second Circuit had not addressed the sufficiency of an indictment that tracks the language of Sec. 924(c) and thereby does not explicitly allege scienter. In United States v. Santeramo, 45 F.3d 622 (2d Cir. Jan. 10, 1995) (per curiam ), issued subsequent to oral argument, we held that, while knowledge of the use of the firearm is an essential element of the offense, scienter need not be expressly alleged. Id. at 624. Where, as here, the...