U.S. v. Wood

• Decision Date: 17 May 2007
• Docket Number: No. 06-1372.,06-1372.
• Citation: 486 F.3d 781
• Parties: UNITED STATES v. Shaheed WOOD, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

486 F.3d 781

UNITED STATES v. Shaheed WOOD, Appellant.

No. 06-1372.

United States Court of Appeals, Third Circuit.

Argued March 16, 2007.

Filed: May 17, 2007.

Mark S. Greenberg (argued), LaCheen Dixon Wittels & Greenberg LLP, Philadelphia, PA, Attorney for Appellant.

Patrick L. Meehan, United States Attorney, Jose R. Arteaga (argued), Assistant U.S. Attorney, Robert A. Zauzmer, Assistant U.S. Attorney, Chief of Appeals, United States Attorney's Office, Philadelphia, PA, Attorneys for Appellee.

Before FUENTES, GREENBERG and LOURIE,^* Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

A jury convicted Shaheed Wood of conspiracy to interfere with interstate commerce by robbery, in violation of 18 U.S.C. § 1951(a), interference with interstate commerce by robbery, in violation of 18 U.S.C. § 1951(a) and 18 U.S.C. § 2, and using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). Based on these convictions, the district court sentenced Wood to a total custodial term of 240 months to be followed by five years of supervised release. The court entered a judgment reflecting this disposition on January 27, 2006. Wood appeals, asserting that the district court erred in denying his motion for a mistrial given what he contends were the prosecutor's improper statements in his closing argument to the jury. Wood further asserts that the district court erred in imposing a 6-level sentencing enhancement for his assault on a police officer pursuant to U.S.S.G. § 3A1.2(c). For the reasons we set forth below, we will affirm Wood's conviction but will vacate his sentence, and will remand the case to the district court for resentencing.

II. FACTS AND PROCEDURAL HISTORY

After a jury has returned a guilty verdict we are bound to interpret the evidence in the light most favorable to the government. United States v. Pungitore, 910 F.2d 1084, 1097 (3d Cir.1990). With that premise in mind, we offer the following background facts which we note that, except for the identification of Wood as a fleeing robber, seem not to be in dispute.

On January 10, 2004, employees of the Pep Boys Automotive Store located at 4101 Market Street in West Philadelphia were preparing to close for the evening when several men wearing dark clothes, black gloves, and masks entered the premises and, at gunpoint, ordered the employees to get down on the floor. At the same time, unbeknownst to the robbers, Philadelphia police officers Martin Demota and Marquerite Wilcox, dressed in full uniform, were entering the parking lot adjacent to the Pep Boys service area in a marked police vehicle. As Demota exited his vehicle, he noticed a masked man in the store's service bay area and realized a robbery was taking place. Demota then heard someone from inside the store yell, "one time," a street slang term used to signal police presence.

As the robbers began to flee in various directions, Demota heard gunshots. He turned west at the corner onto Market Street, from which vantage point he observed a foot coming out of the front window of the store. Ultimately, Demota saw two men emerge from the store's front door, one thin and the other more heavyset.¹ Although Demota, who was yelling "stop, police," was unable to see either man's face, he observed the thinner individual take something from the heavyset one, at which point there was gunfire from one of the men. Demota, uninjured, returned gunfire and watched as the thinner man escaped, running west on Market Street and north on 42nd Street. The heavyset man was not as lucky. After falling to the ground, he got up and headed in the same direction as the thinner man. During the pursuit Demota lost sight of the heavyset man for approximately five seconds when, turning the corner of 42nd Street, he noticed an individual — later identified as Wood — approximately eight to ten feet in front of him. Wood fit the description of the heavyset man. Demota arrested Wood who falsely told him that he worked at Pep Boys.

On March 9, 2005, a grand jury in the Eastern District of Pennsylvania returned a three-count superseding indictment against Wood² charging him with the offenses we listed above. The trial began on July 5, 2005. At the trial, the defense, in an effort to undermine Demota's identification of Wood as the heavyset man, focused on the circumstances surrounding the commission of the crime and Demota's identification of the fleeing robber. In particular, the defense cited the darkness; the distances from which Demota made his observations; Demota's inability to observe the faces of the suspects who fled from the store; Demota's "excited state-of-mind" after the fleeing men shot at him; and the time during which Demota lost sight of the suspects while pursuing them.

Not surprisingly, the prosecutor countered by citing evidence that tended to bolster Demota's identification. Among other things, the prosecutor pointed out that a surveillance video had captured the image of two armed men wearing masks and black clothing and Demota had testified that a large black jacket he recovered from Wood was similar to the one that one of the robbers in the videotape wore. Moreover, Demota identified Wood as the heavyset man from the videotape. There was additional support for the prosecutor's case, though perhaps not directly pointing to Wood, as items found at the crime scene and in the surrounding area included cartridge casings, two firearms, several live rounds of ammunition, black ski masks, a black knitted cap, black knitted gloves, loose coins, and a roll of duct tape.

There was also highly incriminating evidence pointing directly at Wood inasmuch as the police had found a gold 1997 Oldsmobile parked on a street adjacent to, but pointing away from, the Pep Boys that belonged to Wood's girlfriend Stacy Dawkins and for which Wood had the only set of keys. As it happens, Dawkins lent Wood her car the day of the robbery. Later that evening, officers recovered the following items from the car: a pink cleaning receipt with Wood's name on it; a holster; a black knitted skullcap; a black knitted hat; and the keys, which had been left in the ignition.

The parties, in their closing arguments, continued to address the identification issue. Again drawing attention to what he regarded as inconsistencies in Demota's testimony, Wood's attorney argued, among other things, that:

[M]embers of the jury, just as Police Officer Demota was mistaken about where he is located when he fired those shots under the pandemonium, the anguish going on at that time, he very well could have been mistaken as to what Mr. Wood might have said.

. . . .

I say to you, members of the jury, that no one saw Shaheed Wood drive that car to that location, that no one saw Mr. Wood get out of that car. We know that the car was held for fingerprints but that there were no fingerprints in that car that connected Mr. Wood at that date to that car. . . . [T]hat's why this corroborative evidence is important. And, that's why it is the lack of the evidence in this case that creates the reasonable doubt. I mean the Agent got up here and had the gumption to tell you that we didn't have to examine evidence because we had a case against this man. We didn't have to look — examine the evidence because we will wait for the guys to get caught before we examine the evidence. Well, that belies common sense. You know, members of the jury, how many people on death row have been let off with the discovery of DNA evidence that says that they are innocent? Surely, the cops in that case thought they had the right guy.

. . . .

This case, members of the jury boils down to the fact that the physical evidence that's taken from Mr. Wood is not consistent with his involvement in this robbery.

The distances from, testified to by Officer Demota are not consistent with what he said, that the attempt to put square pegs in a round hole by trying to pigeonhole this jacket to this photograph and the fact of the lack of the evidence that shows that the items that were to check[,] not to hold, but check for hairs and fibers and tests for DNA were not done and linked to him. That's what creates a reasonable doubt.

App. at 45, 50-52. Wood's attorney's reference to an agent testifying referred to an agent of the Federal Bureau of Investigation.

In response, the prosecutor began his closing argument with the following remarks:

Was Officer Demota accurate about what Shaheed Wood said or mistaken about what you heard on the radio in the excitement[?] You heard the officer's screams. He was extremely agitated and excited and mistakes happen. Of course, they can happen[.]

You know why because that's how human nature is. I can't explain it but that's what it is. We all make mistakes.

Government agents make mistakes, police officers make mistakes, citizens make mistakes, judges make mistakes, that's why we have courts of appeals.

Id. at 53. Defense counsel objected to these remarks and moved for a mistrial, arguing the government's "particular juxtaposition of mistakes and courts of appeals may somehow lead this jury to believe that if they make a mistake in wrongly convicting Mr. Wood, that, somehow, the Court of Appeals can correct that mistake," thus "minimiz[ing] in the jury's mind the gravity of the responsibility to get it right." Id. at 60-61. The prosecutor answered defense counsel's contention by arguing that he was "merely emphasizing that making mistakes is part of human nature, and it is not limited to what an individual does in his line of work. . . . It is something that is common among human beings. That's something that, in my view, all of these jurors know. These jurors know that there are courts of appeals." Id. at 61. The district court denied the motion for a mistrial, pointing out that its "instructions to the jury will more than adequately direct them to their purpose in their deliberations and not...