Ransfer: Testimony summarizing investigation can raise serious concerns

In U.S. v. Ransfer, No. 12-12956 (April 14, 2014) (Martin, Jordan & Baylson by designation), the Court found insufficient evidence to support convictions for one Hobbs Act robbery, but otherwise affirmed the convictions of defendants convicted of a series of robberies of businesses in Florida. As in its recent decision in U.S. v. Smith, 741 F.3d 1211 (11th Cir. 2013), the Court rejected the argument that the district court should have suppressed evidence obtained as a result of the warrantless installation of a GPS tracking device on a vehicle to track the vehicle’s movements. The Court explained that the police in good faith relied on long-standing Circuit precedent, prior to the Supreme Court’s decision in U.S. v. Jones, that it did not violate the Fourth Amendment to install an electronic device on the outside of a vehicle without a warrant. Because the error would have been harmless in light of other evidence admitted at trial, the Court did not reach the merits of whether it was erroneous to allow a police officer to testify at length, based on hearsay information he gathered during the investigation, about how the investigation proceeded. The Court noted in a footnote that other Circuits “have raised serious concerns with overview witnesses, when an introductory prosecution witness summarizes the findings of an investigation, thereby “painting a picture of guilt before the evidence has been introduced.” The Court found any error would have been harmless because each hearsay statement by the police officer was presented through other evidence, so the jury “would likely have reached the same verdict if [the hearsay testimony] had been excluded.” Turning to the sufficiency of the evidence with regard to one defendant who was charged with acting as a lookout for the robberies, the Court found that the text messages between this defendant and other defendants, the video surveillance, cell phone records, and the fact that his repeated presence at the scene of the robberies could not have been an “innocent coincidence.” As to one robbery, however, the Court found insufficient evidence, because there was no evidence that this defendant was ever inside the store that was robbed, and evidence of his presence in the vicinity was insufficient to convict him for aiding and abetting the robbery.