On Appeal From the United States District Court For the Eastern District of Pennsylvania (D.C. No. 02-cr-00131-1) District Judge: Honorable John R. Padova
Before: Sloviter, Ambro, and Becker,
The opinion of the court was delivered by: Becker, Circuit Judge.
Khalil Abdul Hakim was charged in connection with the robbery by two armed men of a PNC Bank in Norristown, Pennsylvania after an eyewitness saw a truck bearing a "Boone's Moving and Hauling" sign speed away from a parking lot near the robbery. Hakim was one of three employees of Boone's, and the other two employees identified him as one of the robbers from a "somewhat blurred" [A283] photograph from the scene of the crime. A jury subsequently convicted Hakim of four counts: (1) conspiracy to commit armed bank robbery, 18 U.S.C. § 371; (2) armed bank robbery, 18 U.S.C. § 2113(d); (3) using and carrying a firearm during and in relation to a crime of violence, 18 U.S.C. § 924(c)(1); and (4) using, carrying, and brandishing a firearm during and in relation to a crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii).
Hakim makes two contentions on appeal. First, he asserts that the District Court erred by refusing to grant his motion for a mistrial based on the admission of testimony that Hakim "smokes crack," "take[s] pills," and will take "anything that will make him high." [A451.] Although the District Court instructed the jury to disregard this testimony, Hakim contends that the instruction came too long after the testimony (30 minutes), by which point the substance of the testimony had become "etched in granite" in the minds of the jurors and thus incurable by instruction. Hakim also submits that the District Court's curative instruction to the jury was neither precise nor strong enough: it did not specifically mention that the jury was to disregard the testimony about Hakim's drug use, but rather referred to the testimony more generally, and, in Hakim's submission, it did not adequately emphasize to the jury that the testimony about Hakim's drug use should play no part in its deliberations.
Although the timing of a jury instruction may impact whether the damage from improperly admitted testimony can be undone, we conclude that the jury instruction was in fact curative. We generally presume that juries follow instructions given by the District Court, and the time lapse between the testimony and the curative instruction here was not long enough to overcome that presumption. Moreover, during much of the thirty minutes that passed, the jury was in recess and was presumably not contemplating Hakim's drug use, a fact which further suggests that the testimony had not become indelibly ingrained in the minds of the jurors. As to the content of the instruction, it appears that the District Court made a considered decision not to mention the word "drugs" a second time while giving the instruction, so as not to compound the damage done by the admission of the testimony, an approach with which Hakim's counsel apparently agreed since he did not object to the vagueness or weakness of the jury instruction. We conclude that the District Court did not err in the language of this instruction.
Hakim's second contention is that he was denied the right to a fair trial because the government made reference, both during its questioning of Melvin Boone and its closing arguments, to the following: (1) the fact that he was Muslim; (2) his position as a Muslim spiritual leader; (3) his ability to speak Arabic; and (4) his travel to Saudi Arabia. The government alleges that it offered this to demonstrate that Boone, who identified Hakim as the robber in the surveillance photograph, respected Hakim as a spiritual and worldly man and that therefore Boone would not lie about his identification. Hakim responds that the government made reference to his faith and his travels to Saudi Arabia to suggest that he had connections to terrorism; the trial followed shortly after the tragedy of September 11, 2001 ("9/11").
We are underwhelmed by the government's explanation, and especially its contention that the prosecutor passed Hakim's passport around to the jury and called attention to the fact that he had traveled to Saudi Arabia in order to show that Boone thought Hakim was "worldly"; there is no indication in the record that Boone was even aware that Hakim had traveled to Saudi Arabia. However, counsel for Hakim did not object at any point to the government's references to Hakim's faith. Under that circumstance, we can hold that Hakim was denied the right to a fair trial on this ground only if we conclude that there was plain error, which requires, in part, that the error " 'seriously affect the fairness, integrity, or public reputation of judicial proceedings.' "*fn1 Johnson v. United States, 520 U.S. 461, 467 (1997)(quoting United States v. Young, 470 U.S. 1, 15 (1985)). We do not believe that Hakim's argument survives this very rigorous test. The judgment of the District Court will be affirmed.
On November 28, 2001, two men brandishing firearms entered a PNC Bank branch located in Norristown, Pennsylvania and made off with $14,690. The bank robbers were caught on film, but as the District Court later noted, the surveillance photograph was "somewhat blurred."
[A283.] The first robber entered the bank wearing a stocking over his face; the second robber (alleged to be Hakim) followed closely behind and entered the bank with his face exposed, but covered it with a stocking shortly thereafter.
Hakim was connected to the robbery when witness Robert Petersohn told the police that he had noticed a black early-to-mid 1980s Chevrolet S-10 pick-up truck with a sign reading "Boone's Moving and Hauling" speed away from a parking lot near the bank at the time of the robbery. Petersohn worked at an auto body shop in Norristown and, while taking a cigarette break, he noticed the black Chevy truck parked very closely next to his own Chevy pick-up; concerned about potential damage to his customized vehicle, Petersohn walked over to make sure the black Chevy had not scraped his own truck. [A187-190.] Petersohn later saw the pick-up truck drive quickly away down a back alleyway, but he was not able to see the occupants of the truck. [A196-97.] Another witness, Christopher Robbins, saw two men run across the street from the vicinity of the bank, one of whom got into a black "early 80's Chevy" pick-up truck with a sign on it (although he could not read the sign) and drove away. [A226-229.]
Investigators located the owners and employees of Boone's Moving and Hauling: Melvin Boone, Hakim (Boone's business partner), and James Gray, an employee. Boone and Gray identified Hakim as the man in the surveillance photograph. The Norristown police found a black Chevy S-10, with a "Boone's Moving and Hauling" sign, parked across from Boone's home on the morning of the robbery. The license plate on the truck belonged to a different truck, which was registered to Hakim. Gray and Boone stated that Hakim regularly drove the S-10 pick-up truck. Petersohn identified the vehicle as the one he had seen parked next to his truck at the time of the bank robbery.
Based on this evidence, the government obtained a search warrant for Hakim's house. They found a baseball cap with an American flag on it similar to the one the second robber was wearing in the surveillance photograph. [A396-97.] They also found a pair of gray sweat pants similar to the one worn by the second robber. They did not, however, find the distinctive sweatshirt worn by the second robber. [A416.]
Three days after the bank robbery, Hakim purchased a used Lexus automobile for $6,700 in cash (nearly half the amount of money stolen.) [A171-72.] The vehicle was purchased with new $100 bills. [A172.] However, Hakim points out that he and Boone had received $4000 for a moving job shortly before the purchase of the Lexus and that he had purchased vehicles in the past for cash: another Lexus three years earlier for $5,300 and a Jeep for $6,000. Hakim also notes that he had received income from various rental properties he owned.
The initial description of the second bank robber given by the bank employees present at the time of the robbery did not match Hakim's appearance. Seqora Ward, the bank's service manager, testified that she made eye contact with the second robber before he put the stocking over his face. She had initially told police that the robber was "dark skin[ned]," [A361.], although at trial she testified that he had "light brown" skin. [A144.]. Hakim is a light-skinned African American man. Tawana West, the bank's sales manager, told officers that the second robber was "dark skinned" and between thirty-five and forty-five years of age. [A361.] Hakim is fifty-two years old. West also stated that the second robber was six feet tall and was of "medium weight." [A161-62.] Hakim stands five feet nine inches tall and weighs 205 pounds. [PSI #47.] The surveillance photograph shows that the second robber was approximately five foot nine and had a full beard.
Hakim was charged with four counts of armed bank robbery. The jury returned a verdict convicting Hakim on all counts and he was sentenced to fifty two months on Counts One and Two, to run concurrently, and 84 months on Counts Three and Four, to run concurrently to each other but consecutively to Counts One and Two. The District Court also imposed five years of supervised release, restitution in the amount of $14,698 and a special assessment of $400. Hakim timely appealed.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 and we have jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court's denial of a mistrial for abuse of discretion. See United States v. Weaver, 267 F.3d 231, 245 (3d Cir. 2001), cert. denied, 534 U.S. 1152 (2002). Since counsel objected neither to the content of the curative instruction nor to the references to Hakim's faith at trial, we review for plain error the content of the instruction and the question whether the government violated Hakim's right to a fair trial by making references to his faith. See United States v. Brennan, 326 F.3d 176, 182 (3d Cir. 2003). To establish plain error, the defendant must prove that there is "(1) 'error,' (2) that is 'plain,' and (3) that 'affect[s] substantial rights.' If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error 'seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.' " Johnson v. United States, 520 U.S. 461, 467 (1997)(citations omitted).
We begin with the issue of the introduction of testimony about Hakim's drug use. This testimony was elicited in response to questions posed by defense counsel to Melvin Boone, one of the government's key witnesses. Boone was presented with a surveillance photo of the robbery and he identified Hakim as one of the participants. In order to challenge Boone's credibility as a witness, defense counsel presented evidence that Boone had been involved in the sale of illegal drugs. This testimony was given by James Gray, an employee of Boone's Moving and Hauling, who stated that when questioned about the robbery he had told Detective Emrich that Boone had sold crack cocaine out of his girlfriend's apartment. [A432-36.] During the re-direct examination, the government attempted to bring out the fact that Gray had also told Emrich that Hakim used drugs. The government argued that this information was admissible under Fed. R. Evid. 106. Over Hakim's ...