Court Finds Proof of Witness Tampering Insufficient

In U.S. v. Shavers, No. 10-2790 (Aug. 27, 2012), the Court considered the defendants’ Hobbs Act and witness tampering convictions, arising out of the robbery of a "speak-easy" in Philadelphia.

On the Hobbs Act counts, the defendants had argued that the government failed to show a "substantial effect" on interstate commerce. The Court held that only a minimal or potential effect was necessary, and found that the evidence – which showed the speakeasy had operated for years, the proprietress bought alcohol at retail and resold it to friends, and made enough money to help pay her bills, but that she shut down the business after the robbery – met that threshold, particularly if robberies like this were considered in the aggregate. (This opinion, and Powell, from a few days later, contain good discussions of the case law in this area, thanks to the strong challenges made by the defendants. Check them out for your next ISC case.)

The Court found the evidence on the witness tampering counts insufficient, however. The defendants were charged under § 1512(b)(1). The Court held that a successful prosecution under this provision requires proof that the defendant contemplated a particular, foreseeable proceeding that constitutes an "official proceeding," that is, "a proceeding before a judge or court of the United States, a United States magistrate judge, a bankruptcy judge, a judge of the United States Tax Court, a special trial judge of the Tax Court, a judge of the United States Court of Federal Claims, or a Federal grand jury." Here, the defendants’ tampering was directed at preventing witnesses from testifying at specific state court hearings. Even if a federal proceeding might have been foreseeable, there was no nexus between their conduct and the possible federal proceeding.

The Court affirmed the admission of suggestive show-up identifications, ruling that the identifications were reliable enough to justify their admission. It affirmed the admission of testimony regarding a photo array and a lineup, finding neither to be unduly suggestive. It finds a cell-block "mishap" in which one defendant was seen by a witness who had not previously given a reliable description potentially grounds for suppressing the witness’ identification, but finds that admission of the ID was harmless error, given the other evidence against the defendant.

The Court also affirmed admission of 404(b) evidence of an investigation of a Post Office robbery in which the defendants were suspects. The evidence was properly admitted because (1) the government used it to support its witness tampering theory that a federal proceeding was foreseeable; (2) a related search uncovered evidence admitted in the government’s case in chief; and (3) it explained references in recorded calls admitted in the government’s case in chief.

The Court also affirmed the denial of a mistrial after a witness testified: "Having me testify right here, like I’m afraid for my life. By me saying what I said in this courtroom today, there’s no way possible I can stay in Philadelphia. Like that’s a known fact right there. That’s a given, like. For a fact, I know G Bucks [Shavers] is a killer." This was a single comment by a witness who was substantially impeached. The Court gave a stern curative instruction, and there was substantial evidence against Shavers.

The Court rejected a (plain error) Confrontation Clause challenge, citing Berrios, because the statement was not testimonial, it was made in a casual conversation.

Finally, an unincarcerated defendant has no privacy interest against admission of recorded phone calls with incarcerated defendants, particularly when he has been in the same prison before, and presumably knows the rules about recorded conversations.