United States of America v. Brian N. Daniels

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-2286
UNITED STATES OF AMERICA
v.
BRIAN N. DANIELS,
Appellant
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE
DISTRICT OF PENNSYLVANIA
(Dist. Court No. 99-cr-292)
District Court Judge: James F. McClure, Jr.
Submitted Under Third Circuit LAR 34.1(a)
May 24, 2002
Before: ALITO, MCKEE, and WALLACE, Circuit Judges.
(Opinion Filed: September 26, 2002 )
OPINION OF THE COURT
PER CURIAM:
Because we write for the parties only, the background of the case need not
be set out.
I.
First, Appellant argues that several statements made by the Government’s
witnesses at trial constituted inadmissible hearsay, and that the District Court thus erred in
admitting them. These statements fall into three categories. The first category consists of
the testimony of Linden Levey, Rachel Brooks, and Donald Shank regarding statements
made in their presence by Appellant’s co-defendant Darnell Doss. According to these
witnesses, Doss said that he was not making an adequate profit from his drug dealing
activities and inquired as to whether anyone knew of persons in possession of large
amounts of money or drugs that Doss could steal. The second category consists of
Levey’s testimony regarding statements Doss made when he returned to Levey’s and
Brooks’s residence after committing the robbery. These statements refer to Appellant’s
and Doss’s acts of breaking into the victims’ apartment, holding the victims at gunpoint,
searching for money and drugs and then departing. The final category consists of Shank’s
testimony regarding Doss’s statements prior to the robbery concerning the methods to be

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used in committing the robbery.
We begin with Appellant’s contention that the first category of statements
those regarding Doss’s drug business and his inquiries regarding potential sources of
money or drugs constituted inadmissible hearsay. Federal Rule of Evidence 801(c)
defines hearsay as "a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed. R.
Evid. 801(c). The question of whether a statement constitutes hearsay is one of law, and
thus subject to plenary review by this Court. See United States v. Sallins, 993 F.2d 344,
346 (3d Cir. 1993); United States v. McGlory, 968 F.2d 309, 332 (3d Cir. 1992).
If a party does not offer a statement into evidence for the purpose of
establishing the statement’s truth, such statement does not constitute hearsay. See United
States v. Reynolds, 715 F.2d 99, 101 (3d Cir. 1983). In the instant case, the Government
did not offer either Doss’s statements regarding his drug business or his inquiries about
potential sources of drugs and money to prove the truth of the matters asserted. As the
attorney for the Government stated at trial, the Government did not offer the drug
business statements into evidence to prove that Doss was desperate for money, but rather
to show Appellant’s motive for conspiring to commit and committing the robbery in
conjunction with Doss. As to Doss’s requests for information, the federal courts of
appeal are in agreement that interrogative statements cannot constitute hearsay because
they do not assert the existence of facts and thus cannot be used to "prove the truth" of
any matter. See, e.g., United States v. Oguns, 921 F.2d 442, 449 (2d Cir. 1990); United
States v. Long, 905 F.2d 1572, 1579-80 (D.C. Cir. 1990); United States v. Vest, 842 F.2d
1319, 1330 (1st Cir. 1988). Hence, the District Court correctly admitted the statements
and questions in the first category.
We now treat the second category of statements described above, which
concern Appellant’s and Doss’s acts of entering the victims’ apartment, robbing the
victims and departing. The Government argues that such statements fall under the
"excited utterance" exception to the prohibition of hearsay testimony in the Federal Rules
of Evidence. The Federal Rules of Evidence define an excited utterance as a "statement
relating to a startling event or condition made while the declarant was under the stress of
excitement caused by the event or condition." Fed. R. Evid. 803(2). This Court has
interpreted Rule 803(2) to require a purported excited utterance to meet four criteria to be
admissible: (1) there must have been a startling occasion; (2) the statement must relate to
the circumstances of the startling occasion; (3) the declarant must have had the
opportunity to personally observe the events; and (4) the declarant must have made the
statement while he was under the stress of excitement resulting from the occasion in
question. See United States v. Brown, 254 F.3d 454, 458 (3d Cir. 2001). We cannot say
that the District Court clearly erred in finding that the robbery constituted a startling or
exciting occasion. Since Doss’s statements concerned the events that took place
immediately prior to and during the robbery, they clearly related to the circumstances of
the event at issue. Doss’s participation in the robbery gave him the opportunity to
personally observe it. Finally, given Levey’s description of Doss’s anger and agitation
when Doss returned to Levey’s apartment, the District Court did not clearly err in finding
that Doss remained under the stress of excitement when he described the events of the
robbery to Levey. Hence, Levey’s testimony regarding Doss’s statements upon his return
to Levey’s and Brooks’s apartment following the robbery was properly admitted under
Rule 803(2).
Finally, we turn to Doss’s statements concerning the methods to be used in
committing the robbery. The Government argues that these statements were admissible
under the "coconspirator" exception to the prohibition on hearsay evidence. Under
Federal Rule of Evidence 801(d)(2)(E), an out-of-court statement is admissible if it is
made "by a coconspirator of a party during the course and in furtherance of the
conspiracy." Fed. R. Evid. 801(d)(2)(E). The proponent of a purported coconspirator
statement must show, by a preponderance of the evidence, that "(1) a conspiracy existed;
(2) the declarant and the party against whom the statement is offered were members of the
conspiracy; (3) the statement was made in the course of the conspiracy; and (4) the
statement was made in furtherance of the conspiracy." United States v. Ellis, 156 F.3d
493, 496 (3d Cir. 1998); see also McGlory, 968 F.2d at 333-34. Here, the record afforded
the District Court ample reason to find that Appellant entered into a conspiracy with Doss
to commit the robbery. Multiple Government witnesses testified at trial that Appellant

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agreed to rob the victims’ apartment with Doss, to kick open the door, and to hold the gun
in the course of the robbery; furthermore, as noted above, Government witnesses testified
as to Doss’s statements after the robbery regarding the actions of Appellant and Doss
during the robbery’s commission. As to the making of the statements in the course of the
conspiracy, Shank’s testimony suggests that the discussions regarding the method by
which the robbery would be committed occurred after Appellant’s and Doss’s agreement
to participate in the robbery. Finally, Doss’s statements regarding the location of and
methods to be employed in the robbery were in furtherance of the conspiracy, since they
were directed toward accomplishing the robbery. Hence, the District Court did not abuse
its discretion in admitting the out-of-court statements falling into this category.
II.
Appellant next argues that even if the District Court’s admission of the
statements described above did not violate the prohibition on hearsay testimony in the
Federal Rules of Evidence, the statements’ admission violated the Confrontation Clause
of the Sixth Amendment to the Constitution, which guarantees a criminal defendant the
right to confront the witnesses against him. U.S. Const. amend. VI. The Government
responds first that the statements described above that did not fall within the Federal
Rules of Evidence’s definition of hearsay do not implicate the Confrontation Clause at all,
and second that the statements falling under exceptions to the hearsay rule comport with
the Confrontation Clause’s mandate because the exceptions at issue are "firmly rooted" in
nature. The Government is correct on both counts.
We first examine the non-hearsay statements at issue in this appeal, which
consist of Doss’s discussion of the problems facing his drug business and his questions
regarding where he could obtain drugs and money. The Supreme Court’s precedents
establish that the Confrontation Clause does not protect a litigant from the introduction of
an out-of-court statement where that statement is not offered for the purpose of proving
its truth. See United States v. Inadi, 475 U.S. 387, 394, 398 n.11 (1986); Tennessee v.
Street, 471 U.S. 409, 414-17 (1985). As noted above, the Government did not offer
Doss’s statements about his drug business and his inquiries about sources of money and
drugs to prove their truth. Hence, the introduction of Doss’s statements did not violate
Appellant’s rights under the Confrontation Clause.
We reach the same conclusion regarding Doss’s statements falling under the
excited utterance and coconspirator exceptions to the hearsay prohibition. As the
Supreme Court has stated, a criminal defendant’s right to confront the witnesses against
him is not violated by the introduction of hearsay testimony where either "the hearsay
statement ’falls within a firmly rooted hearsay exception,’ or where it is supported by ’a
showing of particularized guarantees of trustworthiness.’" Idaho v. Wright, 497 U.S.
805, 816-17 (1990). This Court has held that the excited utterance exception falls into the
"firmly rooted" category. See Kontakis v. Beyer, 19 F.3d 110, 119 (3d Cir. 1994). The
Supreme Court has issued the same holding regarding the coconspirator exception. See
Bourjaily v. United States, 483 U.S. 171, 183 (1987). Therefore, the District Court did
not violate the Confrontation Clause by admitting Doss’s excited utterances and Doss’s
statements in his capacity as Appellant’s coconspirator.
III.
Appellant contends that the Government’s evidence was insufficient to
warrant conviction in three respects. First, he claims that the Government presented
insufficient evidence to prove that the gun Appellant used during the robbery had
previously traveled in interstate commerce. Second, he claims that the evidence was
generally insufficient to warrant conviction on Counts I and II of the indictment. Finally,
he claims that the Government failed to prove that he committed the robbery to advance
his position in a racketeering enterprise. We address each of these arguments below.
First, Appellant claims that the evidence presented by the Government at
trial was insufficient to prove that the gun he used in the commission of the robbery
traveled in interstate commerce. Hence, Appellant argues, the Government failed to
prove an essential element of its prima facie case against him. Presumably, Appellant is
referring to Count III of the offenses alleged in the indictment, which charges Appellant
with "possess[ing] in or affecting commerce" a firearm while being an "unlawful user of .
. . any controlled substance" in violation of 18 U.S.C. 922(g)(3). App. I at 16. We
draw this conclusion because Counts I, II, IV and V of Appellant’s indictment do not
charge Appellant with violations of statutes requiring that the defendant possess a firearm

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that has traveled in interstate commerce.
An appellant may prevail on a claim that the evidence against him is
insufficient to warrant a conviction if it is impossible that, "after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt." United States v. Aguilar, 843
F.2d 155, 157 (3d Cir. 1988) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
The specific question here is whether a rational trier of fact could have found that
Appellant possessed a firearm "in or affecting commerce" in the course of committing the
robbery with Doss. The Government argues that the testimony of two Government
witnesses at trial was sufficient to allow a rational jury to find that Appellant possessed a
firearm in or affecting commerce: first, Levey’s testimony that the revolver Appellant
used in the commission of the robbery was manufactured by Smith & Wesson; second,
the testimony of Special Agent Keith Rossman of the Bureau of Alcohol, Tobacco and
Firearms to the effect that Smith & Wesson revolvers are manufactured only in
Massachusetts and therefore that the revolver in the instant case must have moved in
interstate commerce at some point to reach Appellant in Pennsylvania. Appellant rejoins
that Rossman testified that he "never saw the gun, nor did he have any independent
knowledge as to whether the gun was manufactured outside the state of Pennsylvania."
Brief for Appellant at 8. This fact, however, does not defeat the possibility that a rational
jury could choose to credit both Rossman’s statement that all Smith & Wesson revolvers
are manufactured in Massachusetts and Levey’s statement that the gun was a Smith &
Wesson, thus permitting an inference that Appellant’s weapon must have traveled from
Massachusetts to Pennsylvania. Hence, we reject Appellant’s challenge to the sufficiency
of the Government’s evidence as to the interstate commerce element of Count III.
Second, Appellant claims that the Government’s evidence was insufficient
to support his conviction for the crimes charged in Counts I and II of the indictment.
Count I alleges that Appellant, "during . . . and in furtherance of a drug trafficking crime
for which he could be prosecuted in a court of the United States . . . possessed, used and
carried a firearm, and in furtherance of such crimes brandished a firearm" in violation of
18 U.S.C. 924(c)(1)(A)(ii). App. I at 15. The evidence the Government presented at
trial was sufficient to prove the elements of this offense. The Government demonstrated
that Appellant and Doss attempted and conspired to rob the victims with the goal of
obtaining illegal drugs for Doss’s operation. Attempting and conspiring to possess a
controlled substance with intent to distribute such substance are violations of federal law,
and hence Appellant could have been prosecuted for such offenses "in a court of the
United States." See 21 U.S.C. 841(a)(1) (prohibiting possession of a controlled
substance with intent to distribute such substance); 21 U.S.C. 846 (prohibiting
conspiracy to possess and attempt to acquire possession of a controlled substance with
intent to distribute). Furthermore, the Government showed through the testimony of the
victims and several of Appellant’s acquaintances that Appellant held a revolver in the
course of the robbery. Hence, the Government’s evidence was sufficient to establish the
elements of Count I. Count II simply alleges that Appellant conspired with Doss and
others to commit the crime charged in Count I and performed an overt act in furtherance
of the conspiracy. App. II at 16. Given the Government’s extensive evidence regarding
the agreement between Appellant and Doss to rob the victims in order to obtain illegal
drugs and their acts in furtherance of that agreement, we must also reject Appellant’s
challenge as to Count II.
Finally, Appellant argues that the Government presented insufficient
evidence to prove the allegation in Count IV that Appellant committed an assault "for the
purpose of gaining entrance to or maintaining or increasing [his] position in an enterprise
engaged in racketeering activity" in violation of 18 U.S.C. 1959(a)(3). Brief for
Appellant at 8. The Government’s evidence is insufficient, Appellant maintains, because
(1) the Government failed to prove the existence of a racketeering enterprise at trial, and
(2) even if the Government did show that such an enterprise was present, the Government
failed to show that Appellant sought to "enhance his status" or act as an "enforcer" in that
enterprise. Id. We address these arguments in turn.
Section 1959(b)(1) incorporates the definition of "racketeering activity" set
forth in 18 U.S.C. 1961. 18 U.S.C. 1959(b)(1). Section 1961(1)(A) specifies that
racketeering activities include "dealing in a controlled substance" in a manner
"chargeable under State law and punishable by imprisonment for more than one year." 18

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U.S.C. 1961(1)(A). Section 1959(b)(2)’s definition of an "enterprise" includes "any . . .
group of individuals associated in fact although not a legal entity . . . engaged in, or the
activities of which affect, interstate or foreign commerce." 18 U.S.C. 1959(b)(2).
Here, the evidence permitted a reasonable jury to determine that at the time of the
robbery, Doss was managing a drug distribution business employing multiple dealers and
trafficking in heroin and marijuana. As to the question of whether this activity violated
state law and was punishable by imprisonment for more than one year, it suffices to say
that the delivery of as little as one gram of heroin was punishable by a mandatory
minimum sentence of two years under Pennsylvania law in 1999. See 35 Pa. C.S.A.
780-113(a)(30) (prohibiting the "delivery . . . [of] a controlled substance"); 18 Pa. C.S.A.
7580(a)(7)(i) (stating that a "person who is convicted of violating section . . .(30)" of
Section 780-113(a) "where the controlled substance . . . is heroin" and the substance
containing heroin has an aggregate weight of between 1.0 and 5.0 grams shall receive a
mandatory minimum sentence of two years in prison). Finally, as to the interstate
commerce element, this Court has previously stated that the distribution of illegal drugs is
an "inherently commercial activity" and therefore "substantially affects" interstate
commerce for the purposes of the Commerce Clause. United States v. Orozco, 98 F.3d
105, 107 (3d Cir. 1996). As many of the other circuits have stated, a substantial effect
upon interstate commerce is more than enough to establish the interstate commerce
element of Section 1959(b)(2); indeed, a de minimis effect will suffice. See, e.g., United
States v. Juvenile Male, 118 F.3d 1344, 1347 (9th Cir. 1997); United States v. Miller, 116
F.3d 641, 674 (2d Cir. 1997); United States v. Doherty, 867 F.2d 47, 68 (1st Cir. 1989).
Since the enterprise at issue here was engaged in drug trafficking, the interstate commerce
requirement of Section 1959(b)(2) is met. The evidence is therefore sufficient to show
that an enterprise was present for the purposes of Section 1961(1)(A).
Appellant argues that the evidence presented at trial was insufficient to
convince a rational trier of fact that he committed an assault in the course of the robbery
for the purpose of "gaining entrance to or maintaining or increasing his position" in
Doss’s drug enterprise. The Government correctly responds that Section 1959(a)(3) only
requires it to demonstrate that a defendant committed an assault for the purpose of
furthering a criminal enterprise’s goals to show that the defendant acted to "maintain or
increase" his position in that enterprise. See United States v. Tse, 135 F.3d 200, 206 (1st
Cir. 1998); United States v. Concepcion, 983 F.2d 369, 381 (2d Cir. 1992). The evidence
showed that Doss told Appellant that the reason he wanted to commit the robbery was to
shore up Doss’s drug distribution business, that Appellant agreed to assist Doss with full
knowledge of Doss’s goals, and that Appellant assaulted Schmader to facilitate the
commission of the robbery. A rational trier of fact could find based on such evidence that
Appellant committed the assault for the purpose of furthering Doss’s ends. We therefore
reject Appellant’s challenge to the sufficiency of the evidence against him as to Count IV.
IV.
Appellant contends that the District Court violated his Sixth Amendment
right to counsel by failing to rule on his complaints during trial regarding the adequacy of
his attorney. Where a criminal defendant requests new counsel or expresses a desire to
represent himself, the trial court is obligated to inquire as to whether the reasons for the
defendant’s request "constitute good cause and . . . [are] sufficiently substantial to justify
a continuance of the trial in order to allow new counsel to be obtained," and to ensure that
any decision to proceed pro se is accompanied by an "intelligent and competent" waiver
of the defendant’s Sixth Amendment right to counsel. United States v. Welty, 674 F.2d
185, 187 (3d Cir. 1982); see also Johnson v. Zerbst, 304 U.S. 458, 465 (1938); United
States v. Peppers, No. 01-2348, 2002 U.S. App. LEXIS 17337, at *26-28 (3d Cir. Aug.
21, 2002). However, the Sixth Amendment does not require a trial court to rule on a
criminal defendant’s complaints regarding his counsel where he has neither requested
new counsel nor asked to proceed pro se. See United States v. Iles, 906 F.2d 1122, 1131
(6th Cir. 1990); Moreno v. Estelle, 717 F.2d 171, 175 (5th Cir. 1983). In the instant case,
Appellant told the District Court that he was "not happy with the representation" and that
he "raised some questions that were not asked," but he did not ask to have his counsel
replaced or to represent himself. App. III at 6. Hence, the District Court did not err in
declining to rule on Appellant’s complaints.
V.
Appellant finally argues that the United States lacks standing to bring a

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criminal action against him in federal court because the indictment fails to present a
"cas[e]" or "controvers[y]" as required by Article III, Section 2 of the Constitution. U.S.
Const. Art. III, sec. 2. Presumably, this is because, in Appellant’s view, his crimes did
not inflict the "concrete" and "imminent" "injury in fact" on the United States that Article
III requires civil litigants to demonstrate to have their claims adjudicated in federal court.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). This contention is frivolous.
As sovereign, the United States has standing to prosecute violations of valid criminal
statutes.
For the foregoing reasons, we affirm the judgment of the District Court.

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