2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
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w . vi l l a no va . e du/thir dc ir c uit_2004/151NOT PRECEDE NTIAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

___________ NO. 03-4260

___________ UNITED S TATES OF AMERI CA

v. EDWARD A. HART,

Appellant

___________ On A ppeal from the Un ited States District Co urt for the Easte rn D istrict of P enns ylvania (D.C. Crimi nal No. 02-cr -00823) Distri ct Judge: Honorable John R. Padova

___________ Sub mi ttedPur su an t to Th ird Ci rc ui t L AR 34.1(a)

October 26, 2004 BE FO RE : NY GA AR D, A M BR O, a nd V AN AN TW ER PE N, Circuit Judges (Fil ed: November 2, 2004)

___________ OPI NION

___________ VA N A NT W ER PE N, Circuit Judge Edward Anthony Hart, the appel lant, was convicte d on June 5, 2003 of bank robbery , armed bank r obbery , use and carrying of a firearm during a crime of vi olence,2

and r elated charg es. H is con viction stemm ed fro m tw o ban k rob beries com mitted in Philad elphia in early 19 87. A lthoug h an a rrest w arrant w as issue d fo r Ha rt in 198 8 in connecti on with thos e robberi es, he coul d not be loc ated unt il 2002. Seizing upon t he long duration between t he crime and t

he prosecution, Hart

moved to dismi ss the indict ment for vi olati on of the st atute of limi tati ons. The Dist rict Court denie d the moti on and H art was co nvicted of all charges in a jury trial. He now appeals the D istrict Court’s denia l of his mo tion to d ismiss a nd f urther conte nds th at the e viden ce pre sented at his t r i alwa s ins uf

fi ci en t t o w ar

r an t a f i nd i ng of gu i l t be y on d ar ea so nabl e d oubt
. We disa gre e w ith b oth poi nts a nd a ffir m H art’s con victi on.

I. FACTUAL AND PROCEDURAL HI STORY Bec au se we wr ite s ol el yfo r t he pa rtie s, we r ec ount o nl yth e r el ev an t f ac ts . O n January 22, 1987, t

wo masked, armed men robbed a PSFS Bank in Phil adelphi a (“the PSFS robbery ”), maki ng off with approximately $3,490. Les s than t

hree weeks later, on February 9, 1987, two men robbed a First Pennsylvania Bank in Philadelphia (“t he First Pennsylvania robbe ry ”) of approximately $14,900. Both banks were federa lly insure d and the F BI b ega n an inv estig ation of th e tw o ro bbe ries. On M arch 27, 1987, Robert DanielJones was arr ested as he was fleei ng yet another bank robbery , and on Januar y 6, 1988, he began cooperating wit h the FBI. J ones soon admitt ed to his involvement in the PSFS and Fi rst Penns yl vania robbe ries and id en tif ied hi m se lf i n b an k s ur ve illa nc e p ho to gr ap hs tak en at t he sc en e o f e ac h r ob be ry.3

Jone s also id entified the oth er un mas ked m an pic tured in the ph otog raph s as H arold Anderson and implicated him in the robberies
. On July 20, 1988, FBI Specia l Agent Robert Jones (unr elat ed to Robert Daniel Jone s and herein after “ Ag ent Jo nes” ) intervie we d A lberta H art and prese nted h er w ith survei llanc e photos fr om the robberi es. According to Agent Jones , Mrs. Hart noted that one of the men in the photo from the PSF S robbe ry “appeared to b e” her son , Edw ard Anthony Hart . She coul d not be certain of the ide ntit

y of t he man in the photo from the First Pe nnsylva nia B ank r obb ery. Age nt Jon es testifie d that M rs. Ha rt then s upp lied him with two pict

ures of her

son from a photo album (“the family phot os”). On July 26, 1988, Robert DanielJones ide ntifi ed the man in t he family

photos as t

he man he knew as Harold Anderson and as the same i ndividualthat parti cipat ed with him i n the two bank rob ber ies. On July 28, 1988, a warrant was issued for

the arrest of Hart , however he coul d not be found. Agent Jone s testifie d that he spoke with Alber ta Hart a fter t

he warrant was issu ed, a nd a dvi sed her to in for m h er so n of the w arra nt an d en cou rag e him to su rren der
. Ag ent Jo nes f

urther testified that M rs. Ha rt later told h im on at least tw o sep arate occasions that s he had spoken with Hart and encouraged hi m to surre nder, but Hart gave her the impre ssion th at he w ould not. A s it turns o ut, Ha rt wa s in E nglan d du ring this time, having moved ther e sometime in the late 1980' s. He st ayed ove rseas f or more than a decade. Hart

was finally ar

rest ed in Florida on November 19, 2002 upon hi s ret urn to t he4

United States. On December 19, 2002, a grand jur y i n the East ern District of Pennsylvania i ndicte d Hart, charging hi m with armed bank robber y, in viol ation of

18 U.S.C. §§ 2113(d) and 2; bank robbe ry , in vi olati on of 18 U.S.C. §§ 2113(a) and 2; and use and carr

yi ng of a fire arm during a c rime of vi olence, in viol ation of 18 U.S.C. §§ 924(c) and 2. Hart was brought

to trial in the Dist

rict Court for t

he Easter n Distri ct of Pen nsylvan ia, wh ich ha d jurisd iction p ursua nt to 18 U.S .C. § 3 231 . Hart m oved to dismis s the i ndictment

for viol ation of

the st atute of limi tati ons, but on May 28, 2003, the Distric t Cou rt denie d the m otion. O n Jun e 5, 20 03, a ju ry foun d H art guilty of all charges. On October 23, 2003 he was sent enced to 214 months impris onment, r esti tuti on of $ 18,3 90, a nd a spe cial a sses sm ent o f $2 00. Hart now appeals t

he District Court ’s deni al of hi s motion t o dismis s on the gr ound that t he g ove rnm ent failed to p rov ide s ufficien t evid enc e tha t he w as a fug itive of ju stice
. Ha rt also ap peals h is con viction on th e gro und that the evide nce a t trial wa s insufficien t to find him gui lty

beyond a reasonable doubt. Thi s Court has j urisdi ction ove r the appe al pursuant to 28 U.S.C. § 1291. For t he reasons set for

th below we rej ect Hart ’s chal lenges and aff irm h is co nvi ction
. II . STANDARD OF REVIEW This Court exe rcis es plenar y r eview over the District Court ’s interpret ation and app licatio n of

the s tatut e of

limita tion s. U.S. v. Midgl ey , 142 F.3d 174, 176 (3d Cir.5

199 8). W e revie w th e jury verd ict in the lig ht mo st favo rable to the go vern men t to determi ne if there was subst antia l evide nce on the r ecord to f ind the Hart

guilt y beyond a
reas ona ble d oub t. U.S. v. Caspe r , 956 F.2 d 41 6, 42 1 (3 d C ir. 19 92)
. II I. DIS CUSSI ON A. The Distri ct Court properly denied Hart ’s moti on to dis miss for vi olati on of the s tatut e of

limita tion s. Ha rt wa s indicte d on De cem ber 1 9, 200 2, on n on-c apital ch arges dating back to two robb eries tha t occu rred in 198 7. Fed eral law prov ides tha t, “ [e]xcept as otherwise expressly pr ovided by

law, no pers on shallbe prosecut ed, tried, or punishe d for any offe nse, n ot cap ital, unless the ind ictme nt is fo und or the in form ation is in stituted w ithin five years n ext a fter suc h offen se sh all ha ve b een com mitte d.” 1 8 U .S.C . § 32 82( a). A fug itive, ho we ver, m ay not em ploy this statu te of lim itations to evad e justice . “No statute of limi tati ons shallextend t o any per son fleeing from justice. ” 18 U.S.C. § 3290. The Supreme Court expla ined: In order to constitut e a fleeing from justice, it i s not neces sary that t he course of ju sti ce sh ou ld ha ve be en pu t in op er ati on by t he pr es en tm en t o f a n i nd ict m en t b y a grand jur y, or bythe fi ling of an informat ion by the attorney

for the gove rnment, or by the making of a complaint before a magistrate. I t is suffici ent that ther e is a flight with the intenti on of avoidi ng being pros ecuted, whether a pros ecuti on has or has not

been actual ly

begun. Str eep v. U.S. , 160 U.S. 128, 133 (1895). Based on Streep , sever al court s, i ncluding one s in the Thi rd Circui t, have inte rpret ed the tolling statute a s requ iring the gov ernm ent to dem onstra te, by a pre pon deran ce of the ev idenc e, that the accu sed c once aled h imself with6

the in tent o f av oid ing arre st or p rose cutio n. U.S. v. Gamboa , Crim. A.No. 85-00343, 1992 W L 5 010 8, *2 (E.D . Pa. M ar. 9 199 2). See also U.S . v. M arsha ll , 856 F.2d 896, 900 (7 th Cir. 19 88); U.S. v. Gonsalves , 675 F.2 d 10 50, 1 052 (9th Cir . 198 2), cert. denied , 459 U. S. 83 7 ( 19 82 ). H ar t d oe s n ot di sp ut e th at h e w as ou tsi de th e ju ris di cti on fr om th e la te 1 98 0's untilhis ar

rest . His sol e argument i s that the evi dence prese nted at his moti on hearing
wa s not su fficien t to estab lish his k now ledge of the crime s cha rged and th erefo re his inten t to av oid arre st or p rose cutio n. The ques tion of

intent is o ne of

fact, and the District Court’s det ermination must be u phe ld u nles s cle arly err one ous . M arsha ll , 856 F.2d at 900-01 . The D istrict Court found that

Hart eit her fle d the jurisdi ction prior t o June 21, 1989 t o avoid arrest or prosecut ion or, having al ready fled, learne d of the ar

rest warrant prior t o June 21, 1989 and d ecide d no t to return . Either th eory is sufficien t to sup port a finding of inte nt to
avo id ar rest o r pro sec utio n. See M arsha ll , 856 F.2d at 900 (“[I] ntent may

be infer red where the defendant fails to surrender to authori ties after learning of the charges against him .”).There is ample evidence to support the District Court’s finding. Despite Mrs. Hart’s testi mony to t

he contrary , Agent Jones testifie d that he informed Mrs. Hart in the latter half of 198 8 of the arres t warrant issued for her son . He also testified that M rs. Hart told him that she was in communicati on with her s on and on two separate occasi ons she tried to convinc e him to su rrender. On June 21 , 1989, H art responde d to his mo ther’s7

pleas by tell ing her he was l eaving t own, giving he r “the impression” that he would not surrender. O n Oc tober 24, 19 90, he ag ain refused to surrender. T he D istrict Court credited Agent Jones’ testimony, which was supporte d by cont emporaneous interview report s. I n comparison, Mrs. Hart coul d not remember key parts of her convers ations with Agent Jones and the Court specifi call y found her

contradi ctory

testimony to be not cred ible. In U.S . v. M arsha ll , 856 F.2d at 900-02, t

he Seventh Cir cuit a ffirmed t he District Court’s f inding t hat the appell ant was a “fugi tive f rom just ice” wit

hin the meaning of 18 U.S.C. § 3290 under

strikingly

simil ar circumstances. In M arsha ll , an FBI agent testifie d that Marshal l’s s ist er tol d the agent that s he had informed him that he was wanted by t he FB I. Id . at

900. The agent a lso t esti fied that Marshall ’s est ranged wife t old the a gent that she had info rme d M arsh all of the o utsta ndi ng w arra nt. Id . At trial, Marshall’ s sis ter testifie d that s he only

told Marshal l that

he was wanted for questioning and hi s estranged wife de nied eve r ha vin g in for me d M arsh all of the a rrest wa rran t. Id . The D istrict Court credited the t esti mony of the FBI agent and spec ific ally found that

Marshall’ s estranged wife w as n ot cr edib le. Id . at 901. The Seven th Circuit affirm ed the D istrict Court’s den ial of the m otio n to dism iss. Id . at 90 2. In the ca se before us , the Distri ct Court c redit ed the t esti mony of Agent Jones and found Mrs. H art to be not cred ible. Specifically, the District Court fou nd that M rs. Hart “testifi ed several times that she was unable to recall portions of these interviews because8

of the l ength of t ime which had ela psed between the inte rviews and her testimony on May 12, 2003.” (Mem orandum accom panying Order Denying Defendant’s M otion to Dismiss the I ndi ctm ent a t 10 ). W e se e no reas on t o qu arre l wi th th e D istrict Co urt’s find ing s. Accepting Agent J ones’ t esti mony, t he stat ute of l imit ations was toll ed from the time of Hart’s f light or decis ion not to retur n on June 21, 1989, when Hart told Mrs. Hart he was leavi ng town, unti l his retur n to the United State s on November 19, 2002. The r emaining period of time between the PSFS robberyin Januar y 1987 and Hart ’s indi ctment on December 19, 2002 amounts to less t han five y ears and fal ls wellwithin t he stat ute of limitations. Therefore we affirm the District Court’s denialof the motion to dismiss. B. The evidence at

tri al was suffi cient

as a matt er of law to support a finding of g uilt beyon d a rea sona ble do ubt. Ha rt ch allen ges the s ufficien cy of the e vid enc e on wh ich h is co nvi ction wa s ba sed
. Spe cifically, he a rgue s that the re w as no identif ication of h im on the rec ord th at cou ld esta blish gui lt beyo nd a reas ona ble d oub t. This Court r eviews the j uryverdict in the l ight most

favorabl e to the government to dete rmine if

there was s ubstantial e vidence on t he record to find Hart gui lty beyond a
reas ona ble d oub t. U.S. v. Caspe r , 956 F.2d 416, 421 (3d Cir. 1992). “A defendant chall enging the suffici ency of t he evidence be ars a heavy burden.” Id. Ha rt failed to meet that burden. Ha rt focu ses his c hallen ge on the testim ony of Ro bert D aniel Jo nes a nd A lberta Hart and the ir di sputed i dentif icat ion of Hart in two sets of photographs , one set

from9

surveillance cameras at t he banks (“the surveillance photos”) and one set from Mrs. Ha rt’s c ollec tion (“th e fa mily p hot os” ). Agent Jones t esti fied that Robert Daniel Jones admitt ed to bei ng involved in the bank robb eries an d told in vestiga tors tha t his co- cons pirator, w ho w as pictu red w ith him in the s urveil lance phot ographs, was a man he knew as Harold Anderson. When Agent Jones showed the s urveil lance phot os to Mrs. Hart , she not ed that the man in t

he photograph from the PSFS robbery “appeared t o be her son. ” She could not be sure of t

he identi fy of t

he man in the photograph from the First Pennsylvania robbe ry , but s he prov ided J ones with her o wn pho tograp hs of her so n. A gent J ones then s how ed the m to Rob ert Daniel Jon es, who identified the m an in the fam ily photos as his criminal partne r, Harold Anderson. Agent Jones then inst ructed Robert DanielJones to s ign the ba ck of the photos , which he di d. At trial, both witnes ses dis puted Agent Jones ’ tes timony and Ro bert D aniel Jo nes failed to identif y Hart in th e cou rtroom as the m an w ho as sisted h im in the robberies. The p arties do not co ntest the adm issibility of A gent Jone s’ testimony that Rob ert Da niel J one s an d M rs. H art id entified H art in the tw o se ts of pho tog rap hs. N or d o w e. “State ments of pri or identific ation are admitted as s ubstantive evi dence because of ‘ the general ly unsati sfactor

y and inconclusive nature of courtroom identi ficat ions as c ompared with thos e made at an earlier time under

less s uggestive condit ions. ’” U.S. v. Brink , 39 F.3d 419, 425 ( 3d Cir. 1994) (quoti ng Fed. R. Evid. 801, Notes of Advis oryCommittee10

on 1 972 Prop osed Ru les). Ta king the fa cts in the light m ost fav orab le to the gov ernm ent, we find that

the jur y coul d have found that Robert DanielJones ide ntifi ed the man in t he family pictures as the sam e man who comm itted the two rob beries with h im. M rs. Hart identi fied

thi s same manas her

son, Hart, and she als o ide nti fied the manin t

he PSFS pho tog rap h as som eon e w ho a ppe ared to b e he r son . Although compell ing, t his was not t

he only evidence pr esented. The government also offered evidence t

hat Hart was aware of

the warrant

for his arres t and fl ed the
coun try. “Evide nce o f a de fend ant’s f light af ter a crim e has been com mitted is adm issible to prove hi s consci ousness of gui lt. ” U.S. v. Pu ngitore , 910 F.2d 1084, 11 51 (3d C ir. 199 0), cert de nied , 500 U.S . 915 (19 91)
. It is likely that this also factored into the jury’s deliberati ons. Most importantly , the jury members were able to view the sur veill ance photos and video to de termine fo r themselve s whe ther Hart ap peared to b e the perpe trator. One jury
mem ber asked to view a portion of the PSF S video in order to “to co mpare [ her] mem ory of defendant to that vi deo frame to es tabli sh identific ation. ” (Tria l Tr. of June 5, 2003 at 4). H art’s sug ges tion that t his k ind of ju ry com par ison is im per mis sible is w itho ut m erit. It i s undisput ed that

a jury may make it s own comparisons of s urveil lance phot os or vid eos and com par e the m w ith th e de fen dan t. U.S. v. Hardy , 451 F.2d 905, 906-07 (1971) (uphol ding the Dis tri ct Court’ s decis ion to al low the jur y t o view photographs of the perpetrators o f a robbe ry and comp are them w ith the defend ants befo re the jury11

retired). S uch a jury evalu ation su rely supp orts a f inding of g uilt beyon d a rea sona ble dou bt. See U.S. v. Murray , 523 F.2d 489, 492 (8th Cir . 1975) ( “Whether there was suffici ent evi dence tur

ned large ly

on the question as t o whether [appel lant] was one of the
men w ho w as photog raphed p articipating in the robb ery.”). We find the combination of evi dence, including t he testimony of Agent

Jones, the evidence of cons ciousnes s of guil t and, perhaps most importantly , the photographs and video taken from the sc ene and entered into e vidence ar e suffici ent to f ind guilt bey ond
reas ona ble d oub t. For the r easons set

forth above , we affir

m Hart’s convi ction.