U.S. v. Mapp

• Decision Date: 16 March 1999
• Docket Number: Docket Nos. 97-1342,97-1344
• Citation: 170 F.3d 328
• Parties: UNITED STATES of America, Appellee, v. John MAPP and Kevin Moore, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

Page 328

170 F.3d 328

UNITED STATES of America, Appellee, v. John MAPP and Kevin Moore, Defendants-Appellants.

Docket Nos. 97-1342, 97-1344.

United States Court of Appeals, Second Circuit.

Argued Aug. 10, 1998.

Decided March 16, 1999.

George Sheinberg, Brooklyn, NY, for Appellant John Mapp.

Bobbi C. Sternheim, New York, NY, for Appellant Kevin Moore.

Lisa J. Klem, Assistant United States Attorney for the Eastern District of New York (Zachary W. Carter, United States Attorney, David C. James, Assistant United States Attorney, of counsel), for Appellee.

Before: CALABRESI, CABRANES, and STRAUB, Circuit Judges.

JOSE A. CABRANES, Circuit Judge:

John Mapp and Kevin Moore appeal from judgments entered following a jury trial in the United States District Court for the Eastern District of New York (Frederic Block, Judge ), convicting them of various racketeering offenses. Mapp was convicted of one count of robbery affecting interstate commerce, in violation of 18 U.S.C. § 1951 (the "Hobbs Act"); ¹ one count of attempted robbery affecting interstate commerce, also in violation of the Hobbs Act; and one count of entering a bank with intent to commit a felony, in violation of 18 U.S.C. § 2113(a) and (d). ² Moore was convicted of one count of conspiracy to commit robbery affecting interstate commerce, in violation of the Hobbs Act; and one count of murder in aid of racketeering, in violation of 18 U.S.C. § 1959. ³ The district court sentenced Mapp principally to a 450-month term of imprisonment and a five-year term of supervised release. It sentenced Moore principally to life imprisonment and a three-year term of supervised release.

On appeal, Mapp and Moore raise various challenges to their convictions and sentences. Mapp contends that the evidence at trial was insufficient to support his offenses of conviction, because the government failed to prove the jurisdictional requirement of the Hobbs Act. ⁴ He also argues that the district court erred by sentencing him as a career offender pursuant to U.S.S.G. § 4B1.1 and by departing upward from the sentencing range prescribed by the United States Sentencing Guidelines (the "Guidelines"). Moore claims that he was prejudiced by the admission at trial of statements elicited from him in violation of his Sixth Amendment right to counsel; that he was improperly convicted under 18 U.S.C. § 1959 for an unintentional killing; that the evidence was otherwise insufficient to sustain his conviction under that statute; that his Fifth Amendment right to due process was violated by the district court's giving of a supplemental jury instruction; and that he was unfairly prejudiced by statements made by the prosecution in summation. In addition, Moore claims that the district court erred by failing to grant him a downward departure from the sentence range prescribed by the Guidelines. ⁵ For the reasons given below, we affirm the judgments of conviction in their entirety.

I.

We describe below the trial evidence, which we are required to view in the light most favorable to the government. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Frank, 156 F.3d 332, 334 (2d Cir.1998).

Mapp and Moore were members of a robbery gang based in Brooklyn, New York. The gang had a fairly distinct hierarchy and division of roles. Its leaders were primarily responsible for selecting potential victims, for planning robberies, and for providing guns and cars as necessary; lower-level members of the gang were responsible for physically carrying out the robberies. The gang typically targeted bank patrons as they waited in line to deposit business proceeds in various banks throughout Brooklyn, Manhattan, Queens, and the Bronx. Gang members were usually armed when they committed the robberies, and they understood that it was acceptable to shoot and kill a victim if a large amount of money was at stake. Mapp was a leader of the gang, while Moore was a lower-level gunman.

At trial, the government introduced evidence of five of the gang's robberies, all of which included John Mapp as a participant. For example, on December 12, 1990, Mapp himself robbed Gerald Diamond, an employee of Flatbush Comics and Books, as Diamond was about to deposit approximately $7,000 worth of business proceeds at a bank in Brooklyn. Diamond testified at trial that his store sold comic books and videos that it had purchased from sources in Illinois and New Jersey. Similarly, on July 15, 1991, the gang attempted to rob Marie Blumden as she stood in line inside a bank in Queens, waiting to deposit approximately $8,000 in proceeds from Swif's Discount Center, a business owned by her husband. Blumden testified that Swif's sold goods that it had purchased from sources in Minnesota and South Carolina. During this robbery, Mapp acted as a driver and look-out man. Like the robbery and the attempted robbery just described, the remaining three robberies for which the government offered evidence each took place at a bank and resulted in the theft of proceeds from a business engaged in interstate commerce. Unlike the Flatbush Comics and Swif's Discount robberies, however, the remaining robberies each involved the shooting of a non-participant by a gang member. ⁶

Only one of the robberies described at trial--a robbery that resulted in the murder of Theodore Severides--implicated Moore. Because of its significance to this case, we must describe the Severides robbery and murder in some detail.

To prove the events surrounding the Severides murder, the government relied primarily on the testimony of Leon Sainsbury, a member of the gang who became a cooperating witness after pleading guilty to federal robbery and firearm charges in September 1995. Sainsbury testified that, on the morning of November 18, 1991, he gathered with Moore, Mapp, and other gang members at the home of gang leader Darrell Fulton to plan a robbery. At the end of the meeting, Mapp drove Moore, Sainsbury, and Fulton to a branch of the Chemical Bank in Manhattan. Once there, Fulton entered the bank and began looking for the robbery target who had been designated at the morning's planning session. When that person failed to appear, Fulton picked Severides as an alternative victim. At the time that Fulton noticed him, Severides was standing in line with a bag under his arm, waiting to deposit cash proceeds from his business, the Joy II Delicatessen. Having selected Severides as a target, Fulton exited the bank and informed Moore and Sainsbury of his choice.

After receiving their instructions from Fulton, Moore and Sainsbury entered the bank and approached Severides, who was still waiting to make his deposit. Moore walked directly behind Severides and grabbed the bag Severides was holding under his arm. As Moore did so, Severides turned and reached towards him. Moore then shot and killed Severides.

After the shooting, Moore and Sainsbury ran out of the bank and eventually reunited with the other gang members at Fulton's house. Sainsbury testified that Fulton expressed anger at the fact that Moore had shot Severides. Moore responded by saying that he had not intended to shoot Severides, but that "if we kept going out that was going to happen eventually." Before leaving Fulton's house that day, the gang members divided up the money they had stolen from Severides, with Mapp and Moore each taking a share.

Mapp and Moore were subsequently named as co-defendants in a thirteen-count superseding indictment filed on April 26, 1996. The indictment alleged that, for at least the period between December 1990 and December 31, 1991, Mapp and Moore were members of a criminal organization that affected interstate commerce through, among other things, the robbery of businesses that engaged in such commerce. Mapp was named in all thirteen counts of the indictment. Counts 1, 4, 6, and 10 charged him with robbery affecting interstate commerce, in violation of the Hobbs Act; Count 2 charged him with attempted robbery, in violation of the Hobbs Act; Count 9 charged him with conspiracy to commit robbery, in violation of the Hobbs Act; Count 3 charged him with attempted robbery affecting a bank, in violation of 18 U.S.C. § 2113(a) and (d); Counts 7 and 11 charged him with entering a bank with the intent to commit a felony, also in violation of 18 U.S.C. § 2113(a) and (d); Counts 5, 8, and 13 charged him with the use of a firearm, in violation of 18 U.S.C. § 924(c); and Count 12 charged him with murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1). Moore was named as a co-defendant with Mapp in Count 9, for conspiracy to commit robbery, in violation of the Hobbs Act; in Count 10, for robbery, in violation of the Hobbs Act; in Count 11, for entering a bank with the intent to commit a felony; in Count 12, for murder in aid of racketeering; and in Count 13, for a firearm violation. All of the charges filed against Moore grew out of his involvement in the Severides murder. With the exception of Count 9, all the counts of the indictment charged each named defendant both as a principal and as an aider and abettor, pursuant to 18 U.S.C. § 2. ⁷

At the close of the evidence in the jury trial, the district court dismissed Counts 10 and 11 of the indictment (each of which named both Mapp and Moore) for lack of venue. ⁸ The jury found Mapp guilty on one count of Hobbs Act robbery (Count 1), one count of attempted Hobbs Act robbery (Count 2), and one count of attempted robbery affecting a bank, in violation of 18 U.S.C. § 2113(a) and (d) (Count 3), but was unable to reach a verdict with regard to the remaining counts as they pertained to him. Moore was found guilty of one count of conspiracy to commit Hobbs Act robbery (renumbered Count 9) and one count of murder in aid of racketeering (renumbered Count 10), but the jury did not reach a verdict as to the remaining firearm charge. After a sentencing hearing, ⁹ the district court entered...