U.S. v. Parker

• Decision Date: 07 May 1990
• Docket Number: Nos. 652,D,694,674,s. 652
• Citation: 903 F.2d 91
• Parties: UNITED STATES of America, Appellee, v. Eric PARKER, Gary Phillips, and Keith Moon, Defendants-Appellants. ockets 89-1390, 89-1391, 89-1402.
• Court: U.S. Court of Appeals — Second Circuit

Page 91

903 F.2d 91

UNITED STATES of America, Appellee, v. Eric PARKER, Gary Phillips, and Keith Moon, Defendants-Appellants.

Nos. 652, 694, 674, Dockets 89-1390, 89-1391, 89-1402.

United States Court of Appeals, Second Circuit.

Argued Jan. 30, 1990.

Decided May 7, 1990.

Deirdre M. Daly, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty. for the Southern District of New York, Kerri Martin Bartlett, Asst. U.S. Atty., New York City, on the brief), for appellee.

Mitchell A. Golub, New York City (Golub & Dunn, New York City, on the brief), for defendant-appellant Eric Parker.

Howard L. Jacobs, New York City, for defendant-appellant Gary Phillips.

Jonathan H. Rosenbluth, South Orange, N.J., for defendant-appellant Keith Moon.

Before OAKES, Chief Judge, KEARSE and FLETCHER ^*, Circuit Judges.

KEARSE, Circuit Judge:

Defendants Eric Parker and Keith Moon appeal from judgments entered in the United States District Court for the Southern District of New York, following a jury trial before Charles S. Haight, Jr., Judge, convicting them of conspiracy to commit interstate robbery, in violation of 18 U.S.C. Sec. 1951 (1988); commission of interstate robbery, in violation of 18 U.S.C. Secs. 1951 and 2 (1988); interstate transportation of stolen property, in violation of 18 U.S.C. Secs. 2314 and 2 (1988); receipt of stolen property, in violation of 18 U.S.C. Secs. 2315 and 2 (1988); and use of firearms during a crime of violence, in violation of 18 U.S.C. Secs. 924(c) and 2 (1988). Defendant Gary Phillips appeals from a judgment entered in the United States District Court for the Southern District of New York, following a jury trial before Lloyd F. MacMahon,

Judge, convicting him of the same offenses. With respect to the conspiracy, robbery, transportation, and receipt-of-stolen-property offenses, Parker, Moon, and Phillips were sentenced principally to four concurrent prison terms of 78 months, 121 months, and 63 months, respectively; each of these prison terms was to be followed by a 60-month prison term on the firearms count, and a three-year term of supervised release. On appeal, each defendant contends principally that he was denied a fair trial by statements made by the Assistant United States Attorney in summation. Parker and Moon also challenge, inter alia, the sufficiency of the evidence to support their convictions and the district court's calculation of their sentences. For the reasons below, we affirm the judgments of conviction.

I. BACKGROUND

The present prosecution arises out of a May 13, 1988 robbery of a check-cashing firm, during which two guards were shot. The government's trial evidence was presented principally through the testimony of codefendant Jeffrey Smith, who had pleaded guilty and entered into a cooperation agreement with the government, law enforcement officers who by happenstance intercepted one of the fleeing robbers, and other eyewitnesses. Taken in the light most favorable to the government, the trial evidence established the following events.

A. The Events

In the winter of 1986, Parker and Moon began working as armed guards at the Payroll Express Corporation ("Payroll") in Elizabeth, New Jersey. Payroll was a check-cashing firm that delivered large amounts of cash to corporate clients, including American Telephone and Telegraph ("AT&T") in New York City. Parker remained employed at Payroll until May 13, 1988; Moon ceased to work there in March 1988.

On May 11, 1988, Moon met in Irvington, New Jersey, with Phillips and Smith, whom he and Parker had known since their high-school days in Irvington, and with several other individuals, including Gregory Wayne King, Eric Andre Higgs, and Wayne Hickson. Phillips told Smith they needed a "lookout" and that Moon would explain why. Moon told Smith they needed him to stand on a street corner and watch for police. Without learning any details at that point, Smith agreed. Moon then led an exploratory expedition to New York, ending near the AT&T building at 33 Thomas Street.

The events during which Smith was to serve as a lookout were outlined by Moon on May 11 and 12 as follows. On the morning of May 13, Parker would call Moon and give him the description of the Payroll car that would deliver cash to the AT&T building and the car's estimated time of arrival. Moon would relay the description to the other members of his group who would call Moon from a pay telephone near Thomas Street. When the Payroll car arrived at 33 Thomas Street, Phillips would deliberately stall his car in a position to prevent other cars from entering that block. Other members of Moon's group would ambush the Payroll car, get the occupants out, and drive the car a few blocks to Leonard Street, where King's car would be parked. There they would transfer the cash from the Payroll car to King's car, return to Moon's home in New Jersey, and divide up the money.

Early on May 13, Parker reported for work at Payroll. He asked cashier Lori Hochron whether she was assigned to go to the AT&T building; she confirmed that she was, and Parker learned what her delivery schedule was by grabbing the "run-sheet" from her hands. Parker began his own delivery route at about 6:15 a.m.; some six blocks away from the Payroll offices, however, Parker stopped his car, contrary to company rules, and made a call from a pay telephone. Calls from pay telephones were not traceable. Parker told the Payroll employees with him that he had made a wake-up call to his sister. At about 7:30 a.m., Parker made another call, this one from a Payroll client's office; this call was traced to Moon.

In the meantime, at approximately 5:00 a.m., Phillips, Smith, Higgs, King, and Hickson had left Irvington for New York in two cars. One was King's car; the other was a car that had been rented the day before by Parker's girlfriend at Parker's request and driven from the rental agency by Moon. They proceeded largely in accordance with Moon's plan, parking King's car on Leonard Street, telephoning Moon to get Parker's information as to the description and schedule of the Payroll car, and taking up their strategic positions near the AT&T building.

When the Payroll car arrived at the AT&T building, Phillips blocked access to that block with the rented car, Smith took up a lookout position, and Higgs, King, and Hickson ambushed the Payroll car. The two Payroll guards who got out of the car were shot; the two other employees in the car were pulled out. Higgs and King drove the Payroll car to Leonard Street where they transferred most of the money, some $247,000, to King's car. Higgs and King then drove King's car back to New Jersey.

After the robbery, Phillips abandoned the rented car and returned to New Jersey by train. Separately, Smith also returned to New Jersey by train. Phillips and Moon later retrieved the rented car and returned it to the rental agency.

Hickson, a member of the ambush squad, did not get into the Payroll car, and he attempted to flee the robbery scene on foot. As luck would have it, however, he encountered two agents of the Federal Bureau of Investigation ("FBI") who were arriving at their offices nearby and who chased and arrested him. Within 48 hours, Parker, Moon, and Phillips also were arrested. Smith turned himself in several days later.

None of the defendants testified at trial. Parker sought to present innocent explanations for the actions attributed to him. To explain his car rental, he called as a witness an automobile mechanic who testified that Parker's car was in need of repair.

B. The Verdicts

Parker, Moon, Phillips, and Smith, et al., were indicted on the conspiracy, robbery, and robbery-related charges indicated above. Parker, Moon, and Phillips were tried together. The jury, after deliberating for five days, found Parker and Moon guilty on all counts but was unable to reach a verdict as to Phillips. Phillips was retried and found guilty on all counts. These three defendants were sentenced as indicated above.

II. DISCUSSION

On appeal, Parker and Moon contend that the evidence was insufficient to support their convictions. They also challenge, inter alia, the prosecutor's summations and the sentences imposed on them. Phillips challenges only the prosecutor's summation at his second trial. We have considered all of their arguments on appeal and find no basis for reversal.

A. Sufficiency of the Evidence

Parker and Moon challenge the sufficiency of the evidence to support their convictions largely on the grounds that (1) the principal evidence against them was testimony of Smith, who admitted having lied in various respects in the past, and that (2) since they were not present at the robbery, the remaining evidence against them was circumstantial. Their contentions have no merit.

In reviewing a challenge to the sufficiency of the evidence, we are required to credit every inference that could have been drawn in the government's favor, United States v. Bagaric, 706 F.2d 42, 64 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 134, 78 L.Ed.2d 128 (1983); United States v. Carson, 702 F.2d 351, 361 (2d Cir.), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 2457, 77 L.Ed.2d 1335 (1983), and to affirm the conviction so long as, from the inferences reasonably drawn, the jury might fairly have concluded guilt beyond a reasonable doubt, United States v. Buck, 804 F.2d 239, 242 (2d Cir.1986); United States v. Taylor, 464 F.2d 240, 244-45 (2d Cir.1972). These principles apply whether the evidence The fact that a conviction may be supported only by the uncorroborated testimony of a single accomplice is not a basis for reversal if that testimony is not incredible on its face and is capable of establishing guilt beyond a reasonable doubt. United States v. Bernstein, 533 F.2d 775, 791 (2d Cir.), cert. denied, 429 U.S. 998, 97 S.Ct. 523, 50 L.Ed.2d 608 (1976). Any lack of corroboration goes merely to the weight of the evidence, not to its sufficiency. See, e.g., United States v....