UNITED STATES of America v. Nelson OTERO, Appellant. United States of America v. Maxcime Cagan, Appellant.
Nos. 12-2844, 12-3663.
United States Court of Appeals, Third Circuit.
March 5, 2014.
557 F. Appx. 146
Submitted Under Third Circuit LAR 34.1(a) March 4, 2014.
Mark E. Coyne, Esq., Office of United States Attorney, Newark, NJ, Glenn J. Moramarco, Esq., Office of United States Attorney, Camden, NJ, for Plaintiff-Appellee.
Peter M. Carter, Esq., Office of Federal Public Defender, Newark, NJ, for Defendant-Appellant.
Nelson Otero, Pollock, LA, pro se.
Before: McKEE, Chief Judge, AMBRO, and JORDAN, Circuit Judges.
OPINION
AMBRO, Circuit Judge.
Maxcime Cagan and Nelson Otero (“Cagan and Otero” or “Appellants“) were each convicted by a jury for their involvement in a series of robberies in the New Jersey
I. Background
Cagan and Otero were charged with committing seven armed robberies in New Jersey between March and May of 2010. Specifically, a superseding indictment charged each with one count of conspiracy to commit robbery, in violation of
Six of the robberies targeted convenience stores; in the seventh, Appellants were charged with robbing a liquor store. The Government presented overwhelming evidence of Appellants’ guilt at trial, including: (1) eyewitness accounts from customers and store employees present during the robberies; (2) surveillance video of the robberies; (3) evidence connecting Cagan and Otero to each other and to the robberies, gathered during searches of Otero‘s residence, a storage locker, and a vehicle used in one of the robberies; (4) recordings of incriminating wiretapped
Cagan and Otero separately filed various pre-trial motions to exclude much of the Government‘s evidence, each of which was either withdrawn before trial or summarily denied by the District Court with one exception. Judge Chesler held three days of hearings and issued a detailed opinion denying Appellants’ motions to exclude the Government‘s ballistics expert. See United States v. Otero, 849 F.Supp.2d 425 (D.N.J.2012). Following a two-week trial, a jury found Appellants guilty on all counts. The District Court, as noted above, sentenced Cagan to 2,072 months’ imprisonment: 188 months’ imprisonment on each of the Hobbs Act counts, to run concurrently; 84 months’ imprisonment on the first gun charge, to run consecutively to all counts; and 300 months’ imprisonment on each of the 6 remaining gun charges, also to run consecutively to all counts. Otero received the same sentence, except that he received an additional 22 months’ imprisonment on the Hobbs Act charges, resulting in a total imprisonment term of 2,094 months.
II. Discussion3
We address Cagan‘s attorney‘s motion to withdraw, followed by the arguments presented by Cagan and Otero in their pro se briefs.
A.
Our rules provide that “[w]here, upon review of the district court record, counsel is persuaded that the appeal presents no issue of even arguable merit, counsel may file a motion to withdraw and supporting brief pursuant to Anders.” 3d Cir. L.A.R. 109.2(a). If we concur with trial counsel‘s assessment, we “will grant [the] Anders motion, and dispose of the appeal without appointing new counsel.” Id. Our “inquiry is thus twofold: (1) whether counsel adequately fulfilled the rule‘s requirements; and (2) whether an independent review of the record presents any nonfrivolous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001).
In his Anders brief, Cagan‘s counsel identifies a single potential ground for appeal: that the District Court erred in not excluding the Government‘s ballistics witness. Our review of the record confirms counsel‘s assessment.
We apply an abuse-of-discretion standard when reviewing a District Court‘s decision to admit or exclude expert opinion testimony and its decisions as to how to determine the reliability of that testimony. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 142, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir.2008). Counsel for Cagan states that the District Court had
We also agree with Cagan‘s counsel that, even assuming the District Court erred in its ruling on the Daubert motion or on some other pretrial motion, the remaining evidence the Government presented against Cagan would render such an error harmless. Moreover, our independent review of the record indicates that there is no other nonfrivolous basis on which Cagan may appeal at this time.
B.
Cagan filed a pro se brief following his counsel‘s motion to withdraw. In it he asserts two bases for appeal, neither of which has merit. First, Cagan argues that the search warrants and his arrest were illegal. See Cagan Informal Br. at 4-5. That argument appears to be based on the fact that the Government‘s wiretaps (according to Cagan) contained evidence that Appellants were also trying to rob a drug dealer during the period the robberies were committed, a crime for which they were not indicted. However, the Government sought to introduce only eight conversations from the many tapes of recordings, all of which pertained only to the charged robberies, and the Court thus denied Cagan‘s motion to exclude irrelevant portions of the tapes as moot. Cagan provides no basis to conclude that his arrest was illegal. Thus his argument concerning the illegality of the wiretaps and his arrest lacks merit.
Second, Cagan asserts that his trial counsel was ineffective. “It has long been the practice of this court to defer the issue of ineffectiveness of trial counsel to a collateral attack.” United States v. Thornton, 327 F.3d 268, 271 (3d Cir.2003) (citation omitted); see also United States v. McLaughlin, 386 F.3d 547, 555-56 (3d Cir. 2004).4 Those claims typically involve facts that are not developed in the record, and our Court is ill suited to developing the facts. “When an ineffective-assistance claim is brought on direct appeal, appellate counsel and the court must proceed on a trial record not developed precisely for the object of litigating or preserving the claim and thus often incomplete or inadequate for this purpose.” Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003).
The appropriate way for Cagan to challenge the effectiveness of his counsel is an application for a writ of habeas corpus under
Otero proceeds pro se on appeal, as he did at trial. His informal brief arguably raises three issues on appeal. None of Otero‘s arguments have merit.
First, Otero challenges the District Court‘s subject matter jurisdiction. He argues that the Government failed to prove the jurisdictional element for the Hobbs Act charges. Otero raised this argument before the District Court in a post-trial motion under Federal Rule of Criminal Procedure 29(e), and the Court denied the motion in a written opinion. Our review of a district court‘s ruling on a motion for judgment of acquittal is plenary. United States v. Berrios, 676 F.3d 118, 132 (3d Cir.2012). The Court properly denied the motion. Evidence that “the defendants’ conduct produces any interference with or effect upon interstate commerce, whether slight, subtle or even potential,” is sufficient to uphold a Hobbs Act prosecution. United States v. Haywood, 363 F.3d 200, 210 (3d Cir.2004). “[A] jury may infer that interstate commerce was affected to some minimal degree from a showing that the business assets were depleted.” Id. (internal quotation marks and citation omitted). Here the Government met its burden by presenting evidence that each of the businesses Appellants robbed sold products that crossed state lines, and that Appellants stole cash and cigarettes during each of the robberies. This evidence is sufficient to establish the jurisdictional element of the Hobbs Act charges under Haywood. The jury thus “could have found the essential elements of the crime beyond a reasonable doubt,” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and the motion to dismiss the indictment was properly denied.
Second, Otero alleges violations of his statutory and constitutional right to a speedy trial. We ordinarily give plenary review to a district court‘s compliance with the Speedy Trial Act and review the factual determinations underlying the court‘s findings for clear error. United States v. Rivera Constr. Co., 863 F.2d 293, 295 n. 3 (3d Cir.1988). Cagan and Otero were arrested on June 6, 2010 in Bergen County, New Jersey by local law enforcement. Both remained in state custody until December 2010, when they were taking into federal custody and ultimately indicted on January 13, 2011. Despite Otero‘s assertions to the contrary, the time he spent in state custody is not relevant to a determination of whether there was a violation of his speedy trial rights. United States v. Battis, 589 F.3d 673, 678-79 (3d Cir.2009). The trial began no later than March 26, 2012. The delay between the federal indictment and beginning the trial was due largely to the parties’ agreement that the trial be designated as a “complex case” (which set agreed-upon extended deadlines) and joint requests by the parties that the trial date be pushed back to allow sufficient time to prepare due to the complexity of the case. Supp.App. at 1-12. The District Court properly excluded this additional time from the Speedy Trial Act computation pursuant to
Finally, to the extent Otero raises ineffective-assistance-of-counsel claims in his pro se brief, we decline to review those claims for the reasons explained above.
* * * * * *
Cagan‘s appellate counsel adequately fulfilled the requirements of Anders, and we grant his motion to withdraw. Neither Cagan nor Otero has presented any nonfrivolous challenge to the judgment of the District Court. We therefore affirm the judgment and dismiss without prejudice the ineffective-assistance-of-counsel claims.