United States v. Anthony

• Decision Date: 13 December 2018
• Docket Number: CRIMINAL ACTION No. 15-180-14
• Parties: UNITED STATES of America v. Romel ANTHONY A/K/A "Dame"
• Court: U.S. District Court — Eastern District of Pennsylvania

354 F.Supp.3d 607

UNITED STATES of America

v.Romel ANTHONY A/K/A "Dame"

CRIMINAL ACTION No. 15-180-14

United States District Court, E.D. Pennsylvania.

Filed December 13, 2018

Jeanine M. Linehan, Salvatore L. Astolfi, U.S. Attorney's Office, Philadelphia, PA, for United States of America.

MEMORANDUM OPINION

Goldberg, District Judge

The multi-defendant superseding indictment in this case describes an ongoing conspiracy whereby drug dealers and other victims were targeted for armed home invasion robberies. It is alleged that these crimes occurred over several years, involving twelve separate incidents. Defendant Romel Anthony was only involved in one of these incidents and was found guilty of attempted possession with intent to distribute cocaine in violation of 21 U.S.C. § 846 (Count Four), but was acquitted on the charge of using or possessing a firearm in furtherance of a federal crime pursuant to 18 U.S.C. § 924(c) (Count Five).

Defendant Anthony currently moves for acquittal or, in the alternative, a new trial on Count Four, arguing that there was insufficient evidence presented at trial. He also asserts that the Government's use of historical cell-site location information ("CSLI") violated his Fourth Amendment rights, in light of the recent Supreme Court decision in Carpenter v. United States, ––– U.S. ––––, 138 S.Ct. 2206, 201 L.Ed.2d 507 (2018). For the following reasons, Defendant Anthony's Motions will be denied.

I. PROCEDURAL BACKGROUND

On April 28, 2015, a federal grand jury returned a seventeen-count indictment charging Defendant Anthony and fifteen co-Defendants. The grand jury subsequently returned a thirty-count superseding indictment on May 26, 2016, charging the original sixteen defendants and adding four defendants. Six of the Defendants, Marcus Bowens, Michael Queen, Daniel Hayes, Jeffrey Bellamy, Eric Scott, and Louis Miller, eventually entered into cooperation plea agreements with the Government. Scott and Bowens testified on the Government's behalf against Defendant Anthony.

Both the original and superseding indictments charge a conspiracy "[f]rom in or around September 2012 through on or about April 29, 2014," in violation of the Hobbs Act, 18 U.S.C. § 1951(a). The superseding indictment describes eleven incidents as part of the conspiracy, as well as one independent incident, amounting to twelve total incidents. Only the details of one of the incidents are relevant to Defendant Anthony and the issues addressed in this Opinion: an attempt by Defendant Anthony and his cohorts to break into the home of a drug dealer and steal cocaine and/or drug proceeds (Counts Four and Five) (the "Bristol Street" Incident).

Defendant Anthony was tried separately¹ for this incident and, on June 12, 2018, the jury convicted Defendant Anthony only on Count Four, attempted possession with intent to distribute cocaine in violation of 21 U.S.C. § 846.

On June 25, 2018, Defendant Anthony filed a post-verdict motion under Federal Rule of Criminal Procedure 29, arguing that the Government had presented insufficient evidence because the Government did not establish the existence of cocaine in the home. On July 2, 2018, Defendant Anthony filed a second post-verdict motion under Federal Rule of Criminal Procedure 33, based on the Supreme Court's recent decision in Carpenter v. United States, ––– U.S. ––––, 138 S.Ct. 2206, 201 L.Ed.2d 507 (2018), where the Supreme Court held that the acquisition of CSLI constitutes a search within the meaning of the Fourth Amendment, thereby requiring the Government to obtain a warrant supported by probable cause.

Both of these Motions are now ripe for decision and, for the reasons discussed below, will be denied.

II. FACTUAL BACKGROUND

As noted above, Defendant Anthony was only involved in one of the incidents charged in the Superseding Indictment, referred to as "Bristol Street." This incident occurred on September 11, 2012, wherein co-Defendants Smith, Jefferson, and Scott climbed the rooftop of a building on the 4300 block of North 5th Street in Philadelphia to conduct surveillance on a Bristol Street resident. Defendant Anthony and his co-Defendants had planned to break into the home of a drug dealer to steal drugs and/or drug proceeds. Defendant Anthony stayed on the ground and acted as a lookout, along with co-Defendant Bowens. A search of the intended residence revealed a storage compartment where drugs and drug proceeds are typically stored.

The thrust of Defendant Anthony's sufficiency argument is that no drugs and/or drug proceeds were found in the residence that the Government witnesses identified (437 Bristol Street). Defendant Anthony stresses that the residence actually searched was 433 Bristol Street. (Def.'s Mot. Acquittal 6/25/18 ¶¶ 2–5, ECF No. 1435.) As will be detailed infra, Defendant Anthony was charged with attempted possession with the intent to distribute cocaine, which requires both intent and a substantial step toward the commission of possession with intent to distribute controlled substances. Third Circuit Model Criminal Jury Instruction No. 6.21.841.A (2015). Thus, it is immaterial which residence—433 or 437 Bristol Street—had a storage compartment for drugs and/or drug proceeds, as long as the Government established the intent to attempt to possess drugs with the intent to distribute. In any case, because Defendant Anthony has raised a sufficiency of the evidence challenge, for completeness sake, I will recount here the evidence presented by the Government:

1. Philadelphia Lieutenant William Hill testified that, on September 11, 2012, based on a neighbor's observation of two men on the roof, he responded to a call regarding a possible burglary in progress on Bristol Street. (N.T. 6/4/18 at 28:21–13.) Hill observed two men on the roof: one male was wearing a gray hoodie and black pants, while the other man was wearing a gray hoodie and tan cargo pants. (Id. at 29:22–30:16.) Hill observed both men wearing some type of mask. (Id. at 30:14–16.)

2. Hill then observed the two men flee from the roof. (N.T. 6/4/18 at 36:6–16.) Hill drove toward that general location and observed three men, two of whom were wearing the same clothes that Hill had observed the two men on the roof wearing. (Id. at 37:3–18.) As he followed the men, he alerted his co-officers of his observations, who stopped, and eventually arrested, these males after the two were identified by Hill as the persons on the roof. (Id. at 37:18–38:23.) The two men identified were Smith and Scott, and the third was Jefferson. (Id. at 39:4–22.)

3. After the arrests of Smith, Scott, and Jefferson, Hill walked back toward Bristol Street, whereby he found a bag, containing cut clothing commonly used as a mask. (Id. at 40:4–42:23.)

4. Hill informed Special Agent Jared Krzwyicki of the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF"), who was also on the scene, that he had observed Scott and Smith carrying something in their hands. (Id. at 14:19–24.) Krzwyicki walked back toward Bristol Street, whereby he also found bags that contained cut t-shirt sleeves, which he knew was commonly used as a mask. (Id. at 15:1–17:21.) Krzwyicki also identified the two men in the gray hoodies as Smith and Scott, and the third man as Jefferson. (Id. at 12:17–13:14.)

5. Based on Hill's information that he saw Scott and Smith jump off a vending services building, Krzwyicki went to this building, spoke to the owner of the business, and conducted a walk-through of the building, wherein he observed a broken window on the second floor. (N.T. 6/5/18 at 23:8–25:23.)

6. Co-Defendant Eric Scott testified as a cooperating witness for the Government. (N.T. 6/5/18 at 99:17–22, 102:23–113:12.) Scott identified Jefferson as one participant, stating that he had met Jefferson two-to-three years before the Bristol Street Incident when they were both incarcerated. (Id. 115:9–116:6.)

7. Scott testified that he met Smith through Jefferson sometime during the summer of 2012. Scott identified Smith and a man by the name of "Junior" as participants in the Bristol Street Incident. Junior was an alias used by cooperating witness, Marcus Bowens. (Id. at 116:7–16, 124:7–21, 125:14–20.) Scott testified that Junior was present when he met Smith for the first time in the Summer of 2012. (Id. at 128:15–129:14.)

8. Scott detailed his involvement in the Bristol Street Incident, explaining that Jefferson and Smith contacted him regarding a "job" on September 10, 2012. (Id. at 132:7–24.) That same night, Scott met with Jefferson, Smith, Junior, and "Dame" at Fifteenth Street and Lenox Street. Scott identified Defendant Anthony as "Dame." (Id. at 132:25–133:12.) During this meeting, Jefferson, Smith, Defendant Anthony, Junior, and Scott discussed the burglary plan. (Id. at 136:10–137:16.) Jefferson, Smith, Scott, and Junior then drove to the target house on Bristol Street, where they discussed that Smith and Jefferson would climb onto the corner grocery store to reach the home's roof. Once on the roof, Smith and Jefferson would enter the targeted residence through the skylight, while Junior and Defendant Anthony stayed on the street using police scanners. (Id. at 134:22–136:1; 137:17–21.) Jefferson and Smith informed Scott that the burglary would occur on September 11, 2012, based on their information that the homeowners would leave around 8:00 a.m. (Id. at 140:4–141:4.) Scott testified that the goal of the burglary was to obtain "a couple hundred thousand in cash as well as bricks of drugs," which he explained were kilograms of cocaine. (Id. at 139:1–15.) Jefferson and Smith told Scott that these drugs were being stored in a closet inside of a trap floor. (Id. at 139:16–23.) After leaving the home on Bristol Street, they went their separate ways, with the understanding that the entire group was to meet again around 2:00 a.m. to 3:00 a.m. on September 11, 2012. (Id. at 143:8–22.)

9. Scott testified that he met Smith, Jefferson, Defendant Anthony, and Junior early in the

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