U.S. v. Perry

• Decision Date: 11 July 2003
• Docket Number: No. 02-4669.,02-4669.
• Citation: 335 F.3d 316
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ammad Bashaun PERRY, a/k/a Benjamin Franklin Moffit, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 316

335 F.3d 316

UNITED STATES of America, Plaintiff-Appellee, v. Ammad Bashaun PERRY, a/k/a Benjamin Franklin Moffit, Defendant-Appellant.

No. 02-4669.

United States Court of Appeals, Fourth Circuit.

Argued: May 9, 2003.

Decided: July 11, 2003.

ARGUED: Elisa Ann Long, Office of the Federal Public Defender, Baltimore, Maryland, for Appellant. Stuart A. Berman, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, Denise C. Barrett, Assistant Federal Public Defender, Baltimore, Maryland, for Appellant. Thomas M. DiBiagio, United States Attorney, Stephanie A. Gallagher, Assistant United States Attorney, Greenbelt, Maryland, for Appellee.

Before TRAXLER, KING, and GREGORY, Circuit Judges.

Affirmed by published opinion. Judge KING wrote the opinion, in which Judge TRAXLER and Judge GREGORY joined.

OPINION

KING, Circuit Judge:

Ammad Bashaun Perry was convicted of one count of witness tampering, in violation of 18 U.S.C. § 1512(b)(3). On appeal, Perry contends that there was insufficient evidence to support the verdict. He also asserts that the district court erred both in denying his pretrial motion to dismiss the charge because of prosecutorial vindictiveness and in denying his motion for a new trial. For the reasons explained below, we affirm.

I.

A.

At about 12:30 a.m. on March 15, 2001, the police in Montgomery County, Maryland, observed a blue Hyundai Elantra traveling at a high rate of speed. Two officers from the Montgomery County Police Department (the "MCPD"), John Cameron and Joseph Saunders, stopped the vehicle and requested that the driver produce his license and registration. The driver (subsequently identified as the defendant, Perry) was unable to produce a license, but he did provide the officers with the vehicle's registration, in the name of Barbara Hawkins (subsequently revealed to be Perry's mother). In response to Cameron's questions, Perry stated that his name was Benjamin Franklin Moffitt and that his date of birth was June 28, 1967.

Perry provided the officers vague answers to inquiries regarding his place of residence. Their suspicions aroused, the officers asked Perry to step out of the car. Perry complied and consented to a search of the vehicle. By this time, Officer John Mullaney, also of the MCPD, had arrived on the scene to provide back-up support to Cameron and Saunders. Cameron remained with Perry, while Mullaney and Saunders searched the vehicle, finding a seven-inch knife in the glove compartment and a set of brass knuckles in the center console. They then searched the vehicle's trunk, where they located a metal pipe (wrapped at one end in electrical tape "to make a handle"), a wooden "shank" (a handmade sharp instrument), and a laundry dryer sheet box containing a loaded.380 caliber handgun and extra ammunition. The firearm's serial number had been obliterated.

Perry was placed under arrest and informed that he was being charged with various weapons violations. Cameron and Saunders then transported Perry to the Rockville District Police Station. During the ride to the police station, Perry repeatedly requested that the officers "get rid of the gun." He informed them that he would "give [them] anybody's name [they] want[ed] to know" if they would "throw away the gun."

Later that evening, Officers Cameron and Saunders transferred Perry from the police station to the nearby Central Processing Unit, where he was booked by Corporal Douglas Carranza. When Carranza asked Perry for his name and date of birth, Perry again asserted that his name was Benjamin Franklin Moffitt and that his date of birth was June 28, 1967. He was then fingerprinted, and a database identification system revealed Perry's true identity, that his date of birth was actually June 10, 1971, and that he had a prior felony conviction. In early June of 2001, once the MCPD became aware of his true identity and his prior felony conviction, it referred Perry's case to the United States Attorney and the Bureau of Alcohol, Tobacco and Firearms (the "ATF") for possible federal prosecution.¹

B.

On June 6, 2001, a grand jury in the District of Maryland returned a two-count indictment against Perry. The indictment charged Perry with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1),² and with knowingly possessing a firearm bearing an obliterated serial number, in violation of 18 U.S.C. § 922(k).³ A jury trial was conducted from April 9 to April 12, 2002. On April 12, after nearly two days of deliberations, the court granted Perry's unopposed motion for a mistrial, on the ground that the jury was deadlocked.

Soon thereafter, on May 1, 2002, a second grand jury returned a three-count superseding indictment against Perry. In addition to the charges made in the initial indictment, the grand jury alleged that Perry had engaged in federal witness tampering, in violation of 18 U.S.C. § 1512(b)(3), when he provided a false name and false date of birth to the MCPD.⁴ The defense moved to dismiss the witness tampering count, contending that the indictment failed to allege an offense under § 1512(b)(3), and asserting that the circumstances leading to the additional charge gave rise to a presumption of prosecutorial vindictiveness. The court denied the motion on May 13, 2002, and Perry's second trial began the next day. Following the Government's presentation of its case-in-chief, Perry moved for judgment of acquittal on all counts. The court denied the motion as to the firearms charges, but reserved ruling on the witness tampering charge.⁵ Perry renewed his motion for judgment of acquittal on all counts at the close of the evidence. Again, the court denied the motion as to the firearms charges, but reserved ruling on the witness tampering charge. On May 16, 2002, the jury acquitted Perry on the two firearms offenses, but it convicted him of witness tampering.

On June 19, 2002, Perry again moved for judgment of acquittal, or in the alternative, for a new trial. The court denied both motions. Perry was subsequently sentenced to twenty-one months' imprisonment, to be followed by three years of supervised release. Perry has appealed, and we possess jurisdiction pursuant to 28 U.S.C. § 1291.

II.

In reviewing the sufficiency of evidence in a criminal case, a guilty verdict must be upheld if there is substantial evidence, taking the view most favorable to the prosecution, to support it. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); see also United States v. Bennafield, 287 F.3d 320, 324 (4th Cir.2002). In conducting such an inquiry, we may not "weigh the evidence or review the credibility of the witnesses." United States v. Wilson, 118 F.3d 228, 234 (4th Cir.1997). And, where the evidence supports differing reasonable interpretations, "the jury decides which interpretation to believe." Id. (internal quotation marks omitted).

We review for abuse of discretion a district court's denial of a motion for a new trial. United States v. Arrington, 757 F.2d 1484, 1486 (4th Cir.1985). We have observed that a court "should exercise its discretion to grant a new trial `sparingly,'" and that it should do so "`only when the evidence weighs heavily against the verdict.'" Wilson, 118 F.3d at 237 (quoting Arrington, 757 F.2d at 1486).

Finally, we review for abuse of discretion a court's determination of whether, in the circumstances of a particular case, a presumption of prosecutorial vindictiveness is warranted. United States v. Najjar, 300 F.3d 466, 480 (4th Cir.2002). In our review of such a determination, we are mindful that the presumption arises "`only in cases in which a reasonable likelihood of vindictiveness exists.'" Id. at 480-81 (quoting United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982)).

III.

Perry raises three challenges to his federal witness tampering conviction. First, he contends that there was insufficient evidence on which to convict him of violating § 1512(b)(3). Next, Perry maintains that the court abused its discretion in denying his motion for a new trial. Finally, he asserts that the court erred in failing to dismiss the witness tampering charge as motivated by prosecutorial vindictiveness. We address each contention in turn.

A.

Perry first maintains that the evidence was insufficient to support his conviction of witness tampering.⁶ In particular, he asserts that the prosecution's evidence failed to establish that, in providing the MCPD with a false name and a false date of birth, he intended to prevent the communication of information to federal law enforcement officers relating to the possible commission of a federal offense.

In order to secure a guilty verdict under § 1512(b)(3), the Government is obliged to demonstrate that a defendant knowingly (1) "engage[d] in misleading conduct toward another person," (2) with the intent to "hinder, delay, or prevent the communication to a [federal] law enforcement officer ... of information relating to the commission or possible commission of a Federal offense." 18 U.S.C. § 1512(b)(3). Perry contends that, while the evidence may have shown that he engaged in misleading conduct, it failed to demonstrate that he did so with an intent to hinder, delay, or prevent any communication with a federal law enforcement officer regarding a possible federal offense.

Jurisdiction for a federal prosecution under § 1512(b)(3) "is based on the federal interest of protecting the integrity of potential federal investigations by ensuring that transfers of information to federal law enforcement ... relating to the possible commission of federal offenses be truthful and unimpeded." United States v. Veal, 153 F.3d 1233, 1250 (11th Cir.1998); see also United States v. Applewhaite, 195 F.3d 679, 688 (3d Cir.1999) ("It is the integrity of the process, and the safety of those involved in it that Congress was seeking to protect in...