                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-20-2006

USA v. Hurst
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2443




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                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       No: 05-2443

                           UNITED STATES OF AMERICA

                                                 v.

                                   WILLIAM HURST,

                                                 Appellant

                      Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                (Crim. No. 04-cr-00094)
                         District Court: Hon. Petrese B. Tucker

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 15, 2006

                         Before: McKee, Garth, Circuit Judges,
                              and Lifland, District Judge*

                             (Opinion Filed: June 20, 2006)

McKEE, Circuit Judge.

       William Hurst appeals his conviction under the Motor Vehicle Theft Deterrent

Act. For the reasons set forth below, we will affirm.

                                            I.




*
 The Honorable John C. Lifland, Senior District Judge of the United States District Court
for the District of New Jersey, sitting by designation.
                                            1
       Because we write primarily for the parties, it is not necessary to recite the facts or

procedural history of this case in detail. It is sufficient to note that Hurst was indicted for

conspiring to altering or removing vehicle identification numbers and trafficking in

certain motor vehicles or motor vehicle parts, in violation of 18 U.S.C. §§ 511 and 2321

respectively. He was thereafter convicted of those charges following a bifurcated jury

trial. During the second phase of that trial, the jury found several sentencing factors, and

Hurst now appeals from the judgment of sentence that was imposed based upon those

findings.

                                                   II.

       Hurst raises several arguments on appeal, many of which merit only the briefest

comment, and we therefore dispose of them in the margin. He argues that the

government: wrongly obtained evidence through the use of post indictment grand jury

subpoenas that were not properly served;1 failed to produce a required Schofield

affidavit; should have been compelled to turn over rough notes of the FBI agent;2 and that

the government improperly withheld selected material from the defense during the

1
   The district court correctly disposed of this argument by noting in its October 22, 2004
order that “‘[An] indictment does not render enforcement of the subpoena seeking records
of the indicted person moot so long as the records sought are relevant to the continuing
investigation of the grand jury’.” App. at 85a. (bracket in original) (citing In re Grand
Jury Proceedings, 632 F.2d 1033 (3d Cir. 1980) and Braswell v. United States, 487 U.S.
99 (1988)).
2
  The district court held that since the witnesses in question never approved or adopted
the statements in question, the agent’s notes were not Jencks material, and need not have
been turned over to Hurst. 18 U.S.C.A. § 3500(e)(1). Hurst’s claim that this was error is
not supported by the record and is meritless.

                                               2
discovery phase. He also claims that: the government’s expert testimony was unreliable

and insufficient to sustain a conviction;3 the district court improperly denied defense

attempts to play audio tapes and the government misrepresented those tapes during its

closing; the jury instructions were incomplete or insufficient;4 and the sentencing factors

should have been stricken from the superseding indictment and not presented to the jury.5

Lastly, he challenges the court’s forfeiture order.

       The arguments not addressed in the margin are briefly discussed below:



3
 Hurst challenges Detective Hoffer’s expert testimony pursuant to Daubert v. Merrell
Dow Phars., Inc., 509 U.S. 579 (1993). Hurst erroneously claims that the detective’s
expert testimony must flow from a discernable methodology Id. at 593. However, the
detective testified as an expert based on his fourteen years of experience in auto theft
investigations, his knowledge of the subject, and his “skill... training, [and] education.”
Fed. R. Evid. 702. He did not offer scientific testimony subject to peer review or the
kind of scrutiny envisioned by the rule in Daubert. We find no error in the district court’s
ruling.
4
  The district court properly denied Hurst’s request for jury instructions regarding vehicle
identification number placement and an inapplicable statutory provision exception. Hurst
conceded that each of the cars in the superseding indictment had VIN numbers on the
dashboard and the driver’s side door. App. at 467a-468a. The government’s evidence
established that Jarosz and Watts removed VIN numbers from the parts they sold Hurst,
and Hurst offered nothing to contradict their testimony. If Hurst removed VIN numbers
or accepted parts with VIN numbers removed, it is simply not relevant whether the VIN
numbers that were removed were numbers that were required by law to be attached.
        Moreover, there is no evidence on this record that would have warranted a charge
on the statutory exception contained in 18 U.S.C. § 511(b)(2)(B). Indeed, as the
government argues, there was substantial evidence that Hurst knew he was purchasing
stolen parts, and there is no testimony that he had to remove VIN numbers to legitimately
repair the cars in question.
5
  The sentencing factors in the superseding indictment were not disclosed to the jury
during the guilt phase of the trial in order to prevent the jury from hearing potentially
prejudicial evidence relevant only to sentencing and not to guilt. Hurst’s attempt to now
argue the “additional factors” were “outside the trial court’s grant of subject matter
jurisdiction,” and “surplusage,” appellant’s br. at 49, is utterly frivolous.
                                              3
                                             A.

       Hurst’s challenge to the district court’s refusal to quash the grand jury subpoenas

is based upon his continued claim of a Fifth Amendment privilege against self

incrimination, misuse of the subpoena to obtain evidence relevant to a prior indictment,

and a claim that the government failed to furnish a Schofield affidavit.6 We have already

disposed of the argument that post indictment grand jury subpoenas are improper. See n.

2, supra. Hurst’s remaining challenge to the grand jury subpoenas is also meritless.

       “[T]he law presumes, absent a strong showing to the contrary, that a grand jury

acts within the legitimate scope of its authority.” United States v. R. Enterprises, 498 U.S.

292, 300 (1991). Here, Hurst has made no showing to the contrary, let alone the “strong

showing” that is required. The district court heard Hurst’s challenge to the subpoenas, and

properly concluded that he had not sustained his burden of showing that the subpoenas

were unreasonable. See id. at 301 (“[A] grand jury subpoena issued through normal

channels is expected to be reasonable, and the burden of showing unreasonableness must

be on the recipient who seeks to avoid compliance.”).

       The second and third post indictment subpoenas were valid because they sought

information that could be useful in the ongoing investigation. Even now, Hurst appears to

suggest that it was somehow unreasonable or inappropriate to subpoena the records for

his business because it no longer existed, and that the records in question were somehow

protected by Hurst’s Fifth Amendment privilege. Yet, defense counsel concedes that the

6
 See In re Grand Jury Proceedings (“Schofield”), 486 F.2d 85, 93 (3d Cir. 1973). In re
Grand Jury Proceedings, 507 F.2d 963, 966 (3d Cir. 1975).
                                              4
records the government introduced from the Pennsylvania Department of State

“undoubtedly” showed that the corporation had never been dissolved. See Appellant’s Br.

at 15. Counsel fails to appreciate that the absence of any “further tax obligations to the

Commonwealth. . .” does not undermine the validity of the subpoenas that were issued for

the corporation’s records or cloak them with a Fifth Amendment privilege.

                                           B.

       Hurst also tries to obtain relief from the fact that the government inadvertently

disclosed some of its work product to defense counsel during discovery and then removed

that material from the items that were made available to defense counsel. The government

was properly allowed to withhold certain inadvertently disclosed documents from the

defense during discovery because those documents were work product. “Reports,

memoranda, or other internal government documents made by an attorney for the

government or other government agent in connection with investigating or prosecuting

the case” are not subject to discovery. Fed. R. Crim. P. 16(a)(2). The district court

correctly concluded that Hurst has not established that the government’s actions were

improper.

                                             C.

       Hurst argues the district court erred in not allowing the jury to hear certain tape

recorded conversations involving Jarosz and Chomyn. The district court ruled that the

evidence was extrinsic and therefore inadmissible under Fed. R. Evid. 608(b). At trial,

defense counsel proffered that the tapes were admissible to show “[a] title in exchange.”

                                                5
App. at 392a. The district court recognized that the government was not attempting to

show that Hurst received title. Rather, the government was trying to show he hadn’t

received title. Hurst now argues the tapes were admissible because “they could have cast

doubt on the government’s conspiracy theory that the defendant, Jarosz, Chomyn and

Watts were all in one conspiracy. . . . ” Appellant’s Br. at 37. That was not the proffer

originally offered at the trial, and the trial court did not abuse its discretion in rejecting

the proffer that was offered.

       We also reject Hurst’s claim that the government’s closing arguments

misrepresented the audio tapes. Extrinsic evidence used to attack or support a witness’s

“character for truthfulness” is not permitted unless that evidence is a conviction of a

crime pursuant to Fed. R. Evid. 609. Fed. R. Evid. 608 (b). This limitation serves to

avoid “mini-trials” and jury confusion stemming from introduction of collateral matters.

Carter v. Hewitt, 617 F.2d 961, 971 (3d Cir. 1980). During its closing, the government

simply explained why some audio tapes had been introduced while others had not been.

We see no merit to Hurst’s challenge to that closing.

                                               D.

       Hurst’s challenge to the order of forfeiture is also meritless. The district court

recognized that it had initially failed to include forfeiture in the judgment of sentence and

properly granted the government’s motion to include it pursuant to Rule 32.2 (b)(3). The

court acted appropriately in doing so. See United States v. Bennett, 423 F.3d 271 (3d Cir.

2005). During trial, the government proved the required nexus between the amount

                                                6
forfeited and the value of the automobiles alleged in the superseding indictment as is

evident from the jury’s finding that the value of the stolen cars was $114,000. Forfeiture

was correctly ordered. See 18 U.S.C. § 982 (2002).

                                          III.

       For all of the above reasons, we will affirm the district courts judgment of

sentence.




                                             7
