United States of America v. Ira Haywood

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
No. 01-4086
UNITED STATES OF AMERICA
v.
IRA HAYWOOD,
Appellant
Appeal from the United States District
Court
for the Virgin Islands
(Crim. No. 00-cr-0029-2)
District Judge: Hon. Thomas K. Moore
Argued: April 28, 2003
Before: ROTH, McKee and COWEN,
Circuit Judges
(Filed: April 8, 2004)
STEPHEN A. BRUSCH, ESQ. (Argued)
28-29 Norre Gade, 2nd Floor
P.O. Box 988
St. Thomas, U.S.V.I. 00804
Attorney for Appellant
DAVID M. NISSMAN, ESQ.
United States Attorney
NELSON L. JONES, ESQ. (Argued)
Assistant United States Attorney
U.S. Courthouse & Federal Building
5500 Veterans Drive, Suite 260
Charlotte Amalie, St. Thomas, U.S.V.I.
00802
Attorneys for Appellee
OPINION
McKEE, Circuit Judge.
Ira H aywood appeals his
convictions for robbery under Virgin
Islands law and for several federal charges
arising out of that robbery. For the reasons
that follow, we will affirm his robbery
conviction and his convictions for the
federal crimes of interference with
commerce by robbery and possession of a
firearm during a crime of violence.
However, we will reverse his conviction
for possession of a firearm with an
obliterated serial number and remand for a
new trial. We will also reverse his
conviction for possession of a firearm
within 1000 feet of a school but remand
with a direction to enter a judgment of
acquittal on that charge.
I. FACTS
Viewed in the light most favorable
to the government, the trial evidence
showed that on December 28, 1999, at
approximately 8:00 p.m., America’s Bar
and Poolroom, located in St. Thomas,
United States Virgin Islands, was robbed.
The owner, America Santiago, and a
customer, Carmen Rodriquez, were in the
bar at the time. Santiago testified that two
masked men entered the bar carrying
firearms. Santiago described one firearm
as very big and one as smaller. She also
described one robber as being “short and a
little strong,” and the other as “tall, but a
little darker.” She testified that the men
demanded money and fled with

-- 1 of 16 --

2
approximately $40 to $60 in bills and
approximately $10 in coins.1
Rodriquez testified that she saw two
masked men come into the bar and
demand money. The men entered with two
guns, a big one and a small one. She said
she was scared and threw $15 at the
masked robbers.
Duke Charles, a cab driver who
lives next door, approximately fifty feet
from the bar, saw two men standing
outside the bar at approximately 8:00 p.m.
on the night of the robbery. One man
pulled a small black gun from his waist,
and the two men then entered the bar.
Charles testified that the two men wore
white T-shirts and were not wearing masks
when he saw them enter the bar. He
immediately called the police on his cell
phone, then ran upstairs to the roof of the
building. He testified that from the roof,
he heard voices saying, “This is a hold-up.
Give me the money.” Charles also
testified that he saw the men leave the bar
and walk up the street towards the Tower
Apartments. Shortly thereafter, Charles
observed a green car come down the street
carrying the same two men that he had
observed entering and leaving the bar.
Charles was in constant contact with the
Virgin Islands Police Department from the
time of his initial call until he saw the
police approaching. He saw the green car
with the two men inside stop at a stop light
before making a left turn and heading in an
easterly direction. Charles conveyed this
information to the police and watched as
the police chased the green car with the
two men inside. However, Charles was
unable to identify the two robbers in court.
Virgin Islands Police Officer
Alphonso Boyce testified that he and
Officer Conrad Gilkes heard the radio
transmission regarding a robbery in
progress and proceeded to the area.
Boyce also heard the subsequent
transmission regarding the direction of
the green car. He then saw the car and
gave chase.
The green car eventually crashed
into a pole in the area of the Enid Bea
Public Library. Ira Haywood, the driver,
and Kevin White, the passenger, were
ordered out of the car. When Haywood
got out, Boyce saw part of a gun fall from
Haywood’s waist. A search of the car
disclosed the bottom portion of the
firearm, a shotgun, ammunition, a ski
mask, gloves, tools and numerous coins.
Sandra Koch, a Federal Bureau of
Investigation hair and fiber expert, later
matched hair fiber samples from Haywood
with hair fiber found in the ski mask
recovered from the car.
Virgin Islands Police Detective
David Monoson found a shotgun
between the seats of the car Haywood
was driving. A firearm frame and
1Santiago also testified that she sold
liquor, Heineken beer and Coors Light
beer at the bar. As we will discuss below,
this is important for purposes of federal
jurisdiction.

-- 2 of 16 --

3
magazine were also found under the
driver’s seat. Monoson testified that $15
was found on the dash board of the car,
$27 was removed from blue pants on the
pavement outside the car and coins were
found on the driver’s side of the car.
Monoson further testified that the serial
numbers from the shotgun and handgun
had been obliterated, and that the
handgun had been manufactured in
California and the shotgun had been
manufactured in Connecticut.
Virgin Islands Police Detective
Warrington Tyson later measured the
distance from America’s Bar to the Ulla
Muller Elementary School. That
distance was 421 feet, 4 inches. Tyson
testified that he took the measurement
from the bar to the entrance gate of the
school.
On March 2, 2002, Haywood and
White were charged in a ten count
superseding indictment with the following
violations: Count One charged both
Haywood and White with interference
with commerce, in violation of 18 U.S.C.
§§ 1951 and 2; Count Two charged
Haywood with possession of a firearm
during the commission of a crime of
violence, in violation of 18 U.S.C. §§
924(c)(1) and 2; Count Three charged
White with possession of a short barreled
shotgun during (and in relation to) a crime
of violence, in violation of 18 U.S.C. §§
924(c)(1) and 2; Count Four charged both
with robbery in the first degree, in
violation of 14 V.I.C. §§ 1862(2) and 11;
Count Five charged Haywood with
possession of a firearm with an obliterated
serial number, in violation of 18 U.S.C. §§
922(k) and 924(a)(1)(B); Count Six
charged White with possession of a
shotgun during (and in relation to) a crime
of violence, in violation of 14 V.I.C. §
2253(a); Count Seven charged both with
possession of a firearm within a thousand
feet of a school, in violation of 18 U.S.C.
§§ 922(q)(2)(A) and 2. Counts Eight,
Nine and Ten charged Haywood with
separate offenses occurring before the
robbery of the bar. Those counts were
severed and subsequently dismissed
without prejudice.
Virgin Islands Police Detective
Darren Foy testified that the bar is a
business established in the Virgin Islands
selling liquor and beer as well as non
alcoholic beverages. He also testified
that the products sold at the bar,
specifically, Heineken beer and Miller
beer, come from mainland United States.
Haywood and White testified in
their own defense, and both denied
participating in the robbery. Haywood
claimed that he did not stop the car he
was driving when chased by police
because he had marijuana and was afraid
that he would be arrested on drug
charges.
The jury found Haywood and
White guilty as charged. Haywood was
sentenced to a total period of
imprisonment of 125 months, and then

-- 3 of 16 --

4
filed this appeal.2
II. DISCUSSION
Haywood makes a number of
arguments in his appeal. Each is
considered separately below.
A. Insufficient Evidence of Robbery.3
Haywood argues that all of his
convictions, on Counts One, Two, Five
and Seven, must be reversed because there
was insufficient evidence that he robbed
the bar. He begins by noting that neither
Santiago nor Rodriquez could identify him
as one of the robbers. He then argues that
the only evidence connecting him to the
robbery was Charles’s testimony that the
car carrying the robbers was the same car
that Charles told the police to follow, and
the police officers’ testimony that the car
they followed at the start of the chase was
the same car that crashed into the library.
Accordingly, Haywood claims that the
only established facts are that the bar was
robbed and that he was driving a green car
that crashed into the library. He contends
that all of the other evidence was
circumstantial and lacked a logical and
convincing connection to the established
facts.
In support of his claim of
insufficient evidence, Haywood notes
that Charles testified that he saw only
one small gun, which was removed from
the waistband of one of the men right
before they entered the bar. Haywood
claims that since Charles could see one
of the men enter the bar with a small gun,
it is inconceivable that he would not also
have seen the shotgun used by the other
man. Yet, Charles never testified about
the other man carrying a shotgun.
Moreover, Charles testified that both
men were unmasked before they entered
the bar, but Santiago and Rodriquez
testified that the robbers were masked
when they entered the bar. Further,
while Charles testified that the robbers
2White also filed an appeal. We
affirmed his judgment of conviction and
sentence on June 14, 2002.
3“In reviewing a jury verdict for
sufficiency of the evidence, we must
consider the evidence in the light most
favorable to the government and affirm the
judgment if there is substantial evidence
from which a rational trier of fact could
find guilt beyond a reasonable doubt.”
United States v. Brown, 3 F.3d 673, 680
(3d Cir. 1993) (citation and internal
quotations omitted). “In determining
whether evidence is sufficient, we will not
weigh the evidence or determine the
credibility of witnesses. . . . Appellate
reversal on the grounds of insufficient
evidence should be confined to those cases
where the failure of the prosecutor is clear.
The evidence need not be inconsistent with
every conclusion save that of guilt, so long
as it establishes a case from which a jury
could find the defendant guilty beyond a
reasonable doubt. . . . A defendant
challenging the sufficiency of the evidence
bears a heavy burden.” United States v.
Casper, 956 F.2d 416, 421 (3d Cir. 1992)
(citations omitted).

-- 4 of 16 --

5
wore white T-shirts, neither Santiago nor
Rodriquez gave a description of the
clothes the robbers were wearing. In
addition, Officer Boyce testified that the
change found at the scene of the arrest
was in quarters, nickels and dimes, while
Santiago testified that the $10 in change
she gave to the robbers was only in
quarters. In addition, Boyce testified that
the car that he followed was blue, but
Charles testified that the car he told the
police to follow was green. Finally,
Haywood argues that Boyce testified that
the slide of a gun fell out of Haywood’s
waistband when Haywood got out of the
car. However, Detective Monoson
testified that he was told that the slide
was thrown out of the car during the
pursuit. In Haywood’s view, the lack of
direct evidence linking him to the
robbery together with the inconsistent
circumstantial evidence demonstrates
that there was insufficient evidence to
sustain his conviction for robbery.
Therefore, all convictions must be
reversed. We disagree. There was more
than sufficient evidence to sustain
Haywood’s robbery conviction.
The fact that neither Santiago nor
Rodriguez could identify Haywood as one
of the robbers is unremarkable given that
both women testified that the men who
robbed the bar were masked. As noted
above, the evidence showed that two
masked men, each carrying a firearm,
robbed the bar. One firearm was smaller
than the other. One man was short and
strong and the other was taller but a little
darker. Testimony allowed this jury to
reasonably conclude beyond a reasonable
doubt that Haywood was the shorter of the
two men and that the shorter man had the
smaller firearm.
Charles called the police on his
cell phone while he was still observing
the two men he saw outside of the bar.
He was still watching as they went into
the bar with guns. He then ran up to the
top of his building where he said he
could see the entire area. He testified that
he heard someone say “Give me money.
This is a holdup.” Charles watched the
men as they left the bar and made a left
turn into some condominiums. He then
saw them coming down the street full
speed in a green car. They stopped at a
stoplight because there was another car
in front of them, and then turned left.
Charles then saw the police car and told
them that the robbers were making a left
turn. He continued watching as the
police started chasing the car with the
two robbers in it.
Boyce’s testimony establishes that
the car he stopped was the same one that
Charles saw. Boyce told the occupants to
get out of the car and Haywood, the driver,
did as instructed. When he got out, the
slide for the top of a gun dropped to the
ground from inside Haywood’s waistband.
The car was searched and the bottom half
of the gun that went with the slide was
recovered, as well as a ski mask, gloves
and ammunition. Several coins had fallen
from the car as well.
Lucy Krigger, the police dispatcher,

-- 5 of 16 --

6
testified that Charles gave the police the
license plate number of the car the robbers
were driving. As noted, Koch, the FBI
witness, testified that a hair sample taken
from Haywood matched the hair found in
the ski mask.4
Given this testimony as well as the
testimony about the shot gun that was
recovered, it is disingenuous to claim that
the evidence was insufficient to convict
Haywood of robbing the bar.
B. Possession of a Firearm with an
Obliterated Serial Number.
Haywood was also convicted of
Count Five, possession of a firearm with
an obliterated serial number. Title 18
U.S.C. § 922(k) provides:
It shall be unlawful for any
person knowingly to
transport, ship, or receive,
in interstate or foreign
commerce, any firearm
which has had the
importer's or
manufacturer's serial
number removed,
obliterated, or altered or to
possess or receive any
firearm which has had the
importer's or
manufacturer's serial
number removed,
obliterated, or altered and
has, at any time, been
shipped or transported in
interstate or foreign
commerce.
The district court instructed the jury on the
§ 922(k) charge as follows:
First, that on the same day,
December 28 of last year,
here in St. Thomas, Ira
H a y w o o d k n o w i n g l y
possessed a firearm, that is,
a .380 Davis Industries
pistol, which firearm at
some point in time had been
transported in interstate
commerce, and from which
the manufacturer’s serial
number had been removed
and obliterated.
App. 506-07. Haywood argues that the
district court’s instruction was erroneous
because it did not require the government
to prove beyond a reasonable doubt that
Haywood knew that the serial number on
the pistol had been obliterated when he
possessed it.
Title 18 U.S.C. § 924(a)(1)(B)
governs the penalty provisions for
violations of § 922. “In 1986 Congress
enacted the Firearms Owners’ Protection
Act, which modified the penalty provisions
of 18 U.S.C. § 924. . . . Where the
preexisting statute had provided criminal
penalties for ‘[w]hoever violates any
provision of this chapter,’ . . . the amended
version, insofar as here relevant, imposes
criminal penalties on ‘whoever knowingly
4The jury could certainly conclude that,
given the climate and the amount of snow
that falls in St. Thomas, Haywood did not
have a ski mask because he was on his
way to or from the slopes.

-- 6 of 16 --

7
violates subsection . . . (k) . . . of section
922.’” United States v. Haynes, 16 F.3d
29, 33-4 (2d Cir. 1994) (citations omitted)
(emphasis in original). The courts of
appeals that have considered the issue after
this amendment became effective have all
held that a § 922(k) conviction now
requires not only knowing possession of
the firearm, but also knowledge that the
serial number on the firearm had been
obliterated. See United States v.
Abernathy, 83 F.3d 17, 19 n.1 (1st Cir.
1996); United States v. Fennell, 53 F.3d
1296, 1300-01 (D.C. Cir. 1995); United
States v. Haynes, 16 F.3d at 34; United
States v. Hooker, 997 F.2d 67, 72-74 (5th
Cir. 1993). Thus, pursuant to the
amendment, knowledge that the serial
number is obliterated at the time of
possession is an element of the offense of
a § 922(k) violation. We therefore hold
that the time of the weapon’s possession is
an element of a violation of § 922(K).
Accordingly, the district court’s instruction
was erroneous.
However, Haywood’s trial counsel
did not object to the instruction, and
therefore Haywood must establish plain
error.5 United States v. Olano, 507 U.S.
725, 734-735 (1993). “Under [the plain
error] test, before an appellate court can
correct an error not raised at trial, there
must be (1) error, (2) that is plain, and (3)
that affects 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 affects the fairness, integrity, or
public reputation of judicial proceedings.”
Johnson v. United States, 520 U.S. 461,
467 (1997) (citations, internal quotations
and brackets omitted). In the case of an
erroneous jury instruction, “the relevant
inquiry . . . is whether, in light of the
evidence presented at trial, the failure to
instruct had a prejudicial impact on the
jury’s deliberations, so that it produced a
miscarriage of justice.” United States v.
Xavier, 2 F.3d 1281, 1287 (3d Cir. 1993)
(citations and internal quotations omitted).
“In other words, did the error seriously
affect the fairness, integrity or public
reputation of judicial proceedings?” Id.
(citation, internal quotations and brackets
omitted). Although we have not adopted
a per se rule, we have held that “the
omission of an essential element of an
offense [in a jury instruction] ordinarily
constitutes plain error.” Id. (citation
omitted) (emphasis in original). “[This] is
consistent with the Supreme Court’s
instruction that due process requires ‘proof
beyond a reasonable doubt of every fact
necessary to constitute the crime with
which [the defendant] is charged.’” Id.
(quoting In re Winship, 397 U.S. 358, 364
(1970)).
Here, the district court’s failure to
instruct the jury that knowledge of the
obliterated serial number is an element of
the crime undoubtedly had an effect on the
jury’s deliberations. “[T]he jury could not
5Had Haywood objected to the
instruction, this issue would be subjected
to a harmless error analysis. Neder v.
United States, 527 U.S. 1, 7-15 (1999).

-- 7 of 16 --

8
have been expected to make a finding
beyond a reasonable doubt as to
[Haywood’s knowledge of the obliterated
serial number] in the absence of an
instruction to do so.” Xavier, 2 F.3d at
1287. Therefore, the inquiry becomes
whether the failure to instruct was
prejudicial, i.e., did the failure to instruct
on knowledge affect Haywood’s due
process rights in a manner that “‘seriously
affect[ed] the fairness, integrity or public
reputation of judicial proceedings.’” Id.
(quoting Olano, 507 U.S. at 736.
We believe it did. The
government argues that because
Haywood possessed the pistol, hid it on
his person and used it in a robbery, the
jury could reasonably infer that Haywood
would have examined the pistol at some
point before the robbery to see if it
worked. In addition, the government
notes that at some point after the robbery,
Haywood disassembled the pistol.
Therefore, given these considerations,
the jury could have reasonably inferred
that Haywood discovered that the pistol’s
serial number had been obliterated. That
is true. The jury could have found
beyond a reasonable doubt that Haywood
knew the gun had an obliterated serial
number had it been instructed of the need
to do so under § 922(k). However, no
such instruction was given and the
government’s argument about the jurors’
thought process therefore rests upon pure
speculation. Haywood has a due process
right to “proof beyond a reasonable
doubt of every fact necessary to
constitute the crime with which [he] is
charged.” In re Winship, 397 U.S. 358,
364 (1970). Speculation about what the
jury could have done if properly
instructed falls woefully short of that
burden.
Accordingly, we find that the
district court’s failure to instruct the jury
on the element of knowledge of the
obliterated serial number amounted to
plain error. Therefore, we will reverse the
conviction on Count Five and remand for
a new trial.
C. Possession of a Firearm in a School
Zone.
Haywood was also convicted on
Count Seven – possession of a firearm
within 1000 feet of a school zone. That
statute provides:
It shall be unlawful for any
individual knowingly to
possess a firearm that has
moved in or that otherwise
affects interstate or foreign
commerce at a place that the
individual knows, or has
reasonable cause to believe,
is a school zone.
18 U.S.C. § 922(q)(2)(A). A “school
means a school which provides elementary
or secondary education, as determined
under State law.” 18 U.S. C. § 921(a)(26).
“[S]chool zone” is defined to mean: “in,
or on the grounds of, a public, parochial or
private school” or “within a distance of
1,000 feet from the grounds of a public,
parochial or private school.” 18 U.S.C. §
921(a)(25)(A), (B).

-- 8 of 16 --

9
Haywood argues that th e
government failed to prove that he knew or
had reason to believe that he possessed a
firearm in a school zone as required under
the statute. We agree.
As noted earlier, Detective Tyson
testified that he measured the distance
from America’s Bar and Poolroom to the
Ulla Muller Elementary School to be 421
feet, 4 inches. Tyson also testified that the
measurement was taken from the bar to the
school’s entrance gate. However, the
location of the bar in relation to the school
is not clear from the evidence. There is
nothing to show whether they share the
same frontage or are around the corner
from each other or whether all approaches
to the “school zone” are clearly marked.
Therefore, the evidence did not establish
whether Haywood necessarily would have
seen the school on the way to or from the
bar. Tyson testified on cross-examination
as follows:
Q: The device you used to
measure the distance to the
school, is that a line of sight
device measurement?
A: No. The measurement, I
explained it already,6 the
measurements were taken,
the wheel that is attached,
affixed to the stick, there’s a
little box in the top, and as
you push the wheel it rolls
the numbers around. So it
gives you, as the wheel is
rolling, it measures the
distance as it goes from one
point to the other.
Q: Okay. So, to take the
measurement, did you walk
around, from America’s Bar
around the corner all the
way round to Ulla Muller
School?
A: It was measured from the
building into the entrance of
the school, just within the
gates.
THE COURT: Is that line
of sight? Can you see
straight?
THE WITNESS: Yes, you
can. You can.
BY [Defense Counsel]:
Q: So you went in a straight
line. Was that on a road or
did you have to go through
bush?
A: That would be on the
road.
6On direct examination, Officer Tyson
testified that he used measuring equipment
known as a “Monson Company, Model
1212,” and said “[i]t’s like a long piece of
stick with a wheel attached to the end that
the traffic officers use when they’re taking
measurements in traffic accidents.” App.
at 303-304.

-- 9 of 16 --

10
App. at 304-05 (emphasis added).
However, the government did not
produce any evidence of any school zone
signs or similar identification that would
support the inference that Haywood should
have known that a school was within 1000
feet of the bar. Nor did the government
produce any evidence that Haywood had to
pass by the school to get to or from the
bar.
Indeed, the only evidence offered
by the government in its attempt to prove
that Haywood should have known that the
school was within 1000 feet of the bar is
the following excerpt from his cross-
examination testimony:
Q: But you know where
America’s Bar is, right?
A: Yes, Sir.
Q: You know where it is?
A: Where it is?
Q: Yeah.
A: It’s by, across the street
from Nisky Center. It have
a big sign saying America’s
Bar.
Q: And you know it well,
right?
A: No. I don’t live down on
that side. I live in Tutu.
Q: You live in Tutu, but you
know where America’s Bar
is, you said?
A: Yes, sir. St. Thomas is
very small.
Q: And you know how to
get to America’s Bar?
A: Yes, sir.
Q: And you know how to
get from America’s Bar?
A: Yes, sir.
Q: You know where the
Towers are?
A: Yes, sir.
Q: You know how to get
there?
A: Yes, sir.
App. at 360-61. Based on this cross-
examination testimony, the government
contends that the “jury could have drawn
the reasonable inference that, since
[Haywood] knew the surrounding area of
America’s Bar he knew or should have
known the Ulla Muller Elementary
School was within 1000 feet of the bar.”
Government’s Br. at 26. However, we
think it shows the opposite. Haywood
testified that he did not know the area
well because he lived in a different part
of St. Thomas, and the trial testimony

-- 10 of 16 --

11
can not be fairly interpreted as
establishing that he knew the area well;
only that he knew how to get there.
Consequently, only rank conjecture
supports a conclusion that Haywood
knew or should have known that the bar
was within 1000 feet of the school. This
is particularly true because the
government never even tried to establish
whether all approaches to the bar
necessarily pass the school or whether
the area is marked as a “school zone.”
In truth, the only evidence that the
government produced to support this
conviction is that the school is, in fact,
within 500 feet of the bar. However, that
is not sufficiently conclusive to enable a
reasonable juror to draw the inference that
Haywood knew or should have known of
that proximity. Accordingly, there is
insufficient evidence to support the
conviction on Count Seven. Therefore, we
will vacate the conviction and remand with
directions to enter a judgment of acquittal
on that Count.
D. Interference with Commerce by
Robbery.
18 U.S.C. § 1951 (Count One)
provides:
Whoever in any way or
degree obstructs, delays, or
affects commerce or the
movement of any article or
commodity in commerce, by
robbery or extortion or
attempts or conspires so to
do, or commits or threatens
physical violence to any
person or property in
furtherance of a plan or
purpose to do anything in
violation of this section
shall be fined under this title
or imprisoned not more than
twenty years, or both.
18 U.S.C. § 1951. To sustain a conviction
for interference with commerce by robbery
under § 1951, the government must prove
the element of interference with interstate
or foreign commerce by robbery. See
Stirone v. United States, 361 U.S. 212, 218
(1960). “The charge that interstate
commerce is affected is critical since the
Federal Government’s jurisdiction of this
crime rests only on that interference.” Id.
However, “[i]f the defendants’ conduct
produces any interference with or effect
upon interstate commerce, whether slight,
subtle or even potential, it is sufficient to
uphold a prosecution under [§ 1951].”
Jund v. Town of Hempstead, 941 F.2d
1271, 1285 (2d Cir. 1991). Moreover, “[a]
jury may infer that interstate commerce
was affected to some minimal degree from
a showing that the business assets were
depleted.” United States v. Zeigler, 19
F.3d 486, 493 (10th Cir. 1994).
The district court’s jury
instruction on the interference with
commerce by robbery charge provided
that
if the government proves
beyond a reasonable doubt
that this business purchased
goods or services that came

-- 11 of 16 --

12
from outside St.
T h o m a s , V i r g i n
Islands, and that,
therefore, all or part
o f t h e p e rsonal
property obtained
from this business,
b e c a u s e o f t h e
a l l eg e d r o b b e r y ,
came from outside
St. Thomas, Virgin
Islands, then you are
instructed that you
may find that the
defendants obtained,
delayed or affected
commerce as this
term is used in these
instructions.
App. 499. Haywood argues that the
government did not produce sufficient
evidence to show that the bar purchased
goods or services from outside the Virgin
Islands
However, Detective Foy testified
that America’s Bar is a business
established in the Virgin Islands and that
some products sold at the bar, specifically,
Heineken beer and Miller beer, come from
the mainland United States. However,
Haywood still contends that Detective
Foy’s testimony is not sufficient to show
that the bar purchased Heineken and
Miller beer that came from outside the
Virgin Islands. The linchpin of
Haywood’s argument is his claim that Foy
did not provide a foundation for his
knowledge regarding the source of the
Heineken and Miller beer sold at the bar.
Therefore, the jury did not know if Foy’s
testimony about the Heineken and Miller
beer was based on information Foy
received from Santiago, the bar’s owner,
or if Foy had himself been to the bar at an
earlier time and knew that the products
came from the mainland, or if Foy just
assumed that the products came from the
mainland. Haywood contends that, at a
minimum, there must be some independent
evidence, such as a purchasing invoice or
the testimony of Santiago as to where she
purchased the Heineken and Miller beer in
order to show interference with interstate
commerce.
We disagree. In United States v.
Lake, 150 F.3d 269 (3d Cir. 1999), a
carjacking case, we held that a Virgin
Islands’ police officer’s testimony was
sufficient to establish that the car in
question had been transported in
interstate or foreign commerce. In Lake,
the police officer, a life-long resident of
the Virgin Islands, testified that “no
motor vehicles are manufactured in the
Virgin Islands and that all motor vehicles
have to be shipped to the islands.” Id. at
273. Lake argued on appeal that the
police officer’s testimony based on his
long time residence was not sufficient to
establish the required commerce element
of the federal carjacking statute, and that
there was no foundation for his
testimony. However, we rejected that
argument. We took judicial notice of the
small size of the Virgin Islands, and held
that a “police officer and lifelong
resident of a place of this type has a

-- 12 of 16 --

13
sufficient basis to testify as to whether
any motor vehicle manufacturing
facilities are located there.” Id.
Here, Officer Foy testified that he
was assigned to the Safe Streets Task
Force and that he investigates violent
federal crimes as a police officer in that
Task Force. Officer Foy also testified that
he was familiar with America’s Bar. We
believe that this record is sufficient to
establish that Officer Foy would have
known of any Heineken or Miller
breweries in the Virgin Islands.
Consequently, the evidence was sufficient
to prove the Heineken and M iller beer sold
at America’s Bar came to the Virgin
Islands from the mainland United States or
otherwise traveled in interstate or foreign
commerce. 7 Accordingly, we will affirm
Haywood’s conviction on Count One.
E. Possession of a Firearm During a
Crime of Violence.
In Count Two Haywood was
convicted of possession of a firearm
during a crime of violence. The relevant
statute provides:
[A]ny person who, during
and in relation to any crime
o f v i o le n c e or dru g
trafficking crime (including
a crime of violence or drug
trafficking crime that
provides for an enhanced
punishment if committed by
the use of a deadly or
dangerous w e a p o n or
device) for which the person
may be prosecuted in a court
of the United States, uses or
carries a firearm, or who, in
furtherance of any such
crime, possesses a firearm,
shall, in addition to the
punishment provided for
7Haywood also argues that there is no
evidence to support the exercise of federal
jurisdiction over what is really a territorial
crime. In support of that argument, he
cites to United States v. McGuire, 178
F.3d 203 (3d Cir. 1999). There, McGuire
was convicted of arson of property used in
an activity affecting interstate commerce.
McGuire put a pipe bomb in his mother’s
car that was used in a local catering
business. The government attempted to
establish the federal jurisdictional element
by relying on a bottle of orange juice that
was in the trunk of the car. However, we
held that the bottle of orange juice was too
inconsequential to support the exercise of
federal jurisdiction. Id. at 210-212.
However, McGuire does not help
Haywood. The federal jurisdictional
element in § 1951 is that interstate
commerce is affected. Stirone, 361 U.S. at
218. Here, it is clear that interstate
comm erce was affected, however
minimally, because the bar sold Heineken
and Miller beer that came from outside the
Virgin Islands. Moreover, the bar’s assets
were depleted because money was stolen
during the robbery. That is far more
consequential than one bottle of orange
juice.

-- 13 of 16 --

14
s u c h c r i m e o f
violence or drug
trafficking crime be
sentenced to a term
of imprisonment of
not less than 5 years.
. . .
18 U.S.C. § 924©)(1). He argues here
that because his § 1951 interference with
commerce by robbery conviction must be
reversed, his § 924(c) possession of a
firearm during a crime of violence must
also be reversed. He reaches this
conclusion because he claims that the
interference with commerce by robbery
conviction is the predicate offense for a
conviction under § 924(c). However, this
argument is without merit because he was
properly convicted under § 1951.
Moreover, a conviction under § 924(c)
does not require a conviction on the crime
of violence as a predicate offense. United
States v. Lake, 150 F.3d at 275. A valid §
924(c) conviction “requires only that the
defendant have committed a violent crime
for which he may be prosecuted in federal
court. It does not even require that the
crime be charged; a fortiori, it does not
require that he be convicted.” United
States v. Smith, 182 F.3d 452, 457 (6th Cir.
1999) (emphasis in original).
F. Lost or Destroyed Evidence.
Haywood claims that the district
court erred by not dismissing the
superseding indictment against him
because the government either lost or
destroyed the clothing he was wearing on
the night of the robbery.8
In Trombetta v. California, 467
U.S. 479, 488 (1984), the Court noted that
“[w]hatever duty the Constitution imposes
on the States to preserve evidence, that
duty must be limited to evidence that
might be expected to play a significant role
in the suspect’s defense.” In order “[t]o
meet this standard of constitutional
materiality, evidence must both possess an
exculpatory value that was apparent before
the evidence was destroyed, and be of such
a nature that the defendant would be
unable to obtain comparable evidence by
other reasonably available means.” Id. at
489.
Haywood submits that the lost or
destroyed clothing meets the standard for
constitutional materiality because his case
centered on identification. Thus, the color
and type of clothing he wore at the time he
was arrested was relevant to both the
government and the defense as proof of
identity. He claims that Charles’s
identification of him is based on a white T-
shirt that Charles said he was wearing.
Haywood alleges there w as no
overwhelming evidence that he was
8The government claims that it neither
lost nor destroyed the clothing Haywood
was wearing on the night of the robbery.
It notes that Detective Monoson testified
on cross-examination that the clothing had
been left in a recently condemned police
station and that he was unable to enter the
building to search for the clothing because
of the condemnation.

-- 14 of 16 --

15
wearing a white T-shirt because Charles
was the only person who testified that he
was wearing a white T-shirt. Haywood
claims that he was wearing different
clothing. Moreover, he notes that neither
Santiago nor Rodriquez testified that he
was wearing a white T-shirt. Therefore, he
submits that if he had been able to
introduce the T-Shirt, it would have been
of significant value in rebutting Charles’s
testimony.9 Consequently, he argues the
unavailability of the clothing severely
prejudiced his ability to mount a defense.
We do not see any merit in this
argument. Haywood understandably
forgets that he was photographed by the
police wearing a white T-shirt during
processing following his arrest. That
photograph was admitted as an exhibit at
trial, but Haywood does not bother to
mention it now. He also does not argue
that the admission of the photograph was
error. We fail to understand why it
makes a difference whether the actual
white T-shirt was introduced into
evidence or whether a photograph of
Haywood wearing the white T-shirt was
introduced into evidence. Consequently,
we hold that the district court did not err
by not dismissing the superseding
indictment against him based on this due
process claim.
G. Problems with the Interpreter.
Haywood’s challenge to the
translation of testimony is equally
frivolous. At trial, both Santiago and
Rodriquez testified with the aid of a
Spanish interpreter. Haywood argues
that his convictions must be reversed
because of a number of problems with
the interpreter, which he claims violated
his Fifth Amendment due process right
and his Sixth Amendment confrontation
right. He first argues that there is no
evidence in the record that the interpreter
was certified to translate in federal court,
as required by 28 U.S.C. § 1827, or
otherwise determined to be qualified or
competent under 28 U.S.C. § 1827(d).
However, Haywood did not object to the
district court’s decision to use the
interpreter nor did he raise any issue
concerning the interpreter’s certification
or qualifications in the district court.
Accordingly, he has waived this issue.
United States v. Hsu, 155 F.3d 189, 205
9Haywood suggests bad faith on the
government’s part because the police did
not follow standard procedure in
preserving the clothing he wore.
However, he does not say what standard
procedure the police did not follow. In
United States v. Deaner, 1 F.3d 192 (3d
Cir. 1993), we wrote: “A defendant who
claims destroyed evidence might have
proved exculpatory if it could have been
subjected to tests has to show the
prosecution’s bad faith in ordering or
permitting its destruction. Without a
showing of bad faith, failure to preserve
evidence that might be of use to a criminal
defendant after testing is not a denial of
due process.” Id. at 200 (citations
omitted). Here, there is absolutely no
evidence that Haywood’s clothing was
purposefully lost or destroyed.

-- 15 of 16 --

16
(3d Cir. 1998) (citing Harris v. City of
Philadelphia, 35 F.3d 840, 845 (3d Cir.
1994)).
Haywood’s second argument is that
the interpreter improperly summarized the
testimony of Santiago and Rodriquez.
However, he fails to tell us what testimony
the interpreter summarized or why the
alleged summary was improper.
His third argument is only slightly
less fanciful than the prior two. He claims
that the interpreter consistently translated
testimony in the third person. According
to Haywood, translation in the third person
resulted in confusion because the
translator’s use of the pronouns “she” and
“her” referred not only to Santiago and
Rodriquez, but also to other female
witnesses. In support of his argument he
cites to United States v. Gomez, 908 F.2d
809 (11th Cir. 1990). In Gomez, the
interpreter improperly equated “disco”
with “Elks Lodge,” thereby corroborating
a prior witness’s testimony that was
favorable to the government. Here,
however, there is no claim that the
interpretation in the third person
corroborated any other testimony, and
Haywood fails to provide any concrete
examples of confusion. Therefore, Gomez
does not help. Accordingly, we do not
find any due process violation involving
the use of the interpreter.
III. CONCLUSION
For all of the above reasons, we
will affirm the convictions on Counts One,
Two and Four; vacate the conviction on
Count Five and remand for a new trial; and
vacate the conviction on Count Seven and
remand with directions to enter a judgment
of acquittal.

-- 16 of 16 --