On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Crim. No. 99-cr-00600) District Judge: Hon. Bruce W. Kauffman
Before: Sloviter, Nygaard, and ALARCON,*fn1 Circuit Judges
The opinion of the court was delivered by: Sloviter, Circuit Judge.
Submitted Under Third Circuit LAR 34.1(a) March 13, 2003
Michael Thornton appeals from the District Court's judgment convicting him of possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1), and sentencing him pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e). Thornton contends that his defense counsel was ineffective for introducing a police report into evidence in unredacted form, that the felon-in-possession statute is unconstitutional and that he should not be subjected to a sentence increase required under 18 U.S.C. § 924(e).
On June 28th, 1999, Philadelphia Police Sergeant Jamill Taylor was supervising a crowd in Philadelphia as two nightclubs let out. He was sitting in his patrol car and speaking to Officers Jacob Williams and Curtis Younger of the Philadelphia Highway Patrol, who were standing near the car. Sergeant Taylor saw Thornton standing on the street nearby. He recognized Thornton as they had grown up in the same neighborhood.
Sergeant Taylor informed Officers Younger and Williams that Thornton was wanted on a warrant for assaulting Taylor's brother in New Jersey. Officer Williams walked towards Thornton and Thornton fled. Officers Younger and Williams pursued Thornton on foot, while Sergeant Taylor blocked the street with his car. Officer Younger ultimately knocked Thornton to the ground. According to the three officers, a loaded gun fell out of Thornton's waistband. The gun was on the street momentarily before Officer Williams picked it up and unloaded it. The gun was not submitted for fingerprinting because the three officers said that they had seen Thornton in possession of the gun and because the officers had handled the gun.
Following Thornton's arrest, the grand jury returned an indictment charging him with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Prior to trial, the District Court ruled that because Thornton was charged with possession of a gun, admission of the fact that the charges for assault on Sergeant Taylor's brother involved a shooting would unfairly prejudice him. Counsel agreed that the charges underlying the warrant would be referred to as an aggravated assault and that the parties would not refer to a gun or a shooting. Thornton's trial ended in a hung jury and the District Court declared a mistrial.
At the second trial, where Thornton was represented by new counsel, the parties stipulated that the firearm traveled in interstate or foreign commerce within the meaning of 18 U.S.C. §§ 921, 922, and that Thornton had been previously convicted of a crime punishable by a term of imprisonment of more than one year. The only issue for the jury was whether Thornton possessed the gun.
The officers testified that they saw the gun fall from Thornton's person. In his defense, Thornton called two friends who saw him at one of the clubs that evening. They testified that admission to the club required passing through metal detectors. One of the witnesses testified that she saw Thornton on the street before the arrest, hugged him and did not feel a gun. Both witnesses were on the street when the arrest occurred and testified that they did not see a gun fall from Thornton's person.
As in the first trial, the witnesses did not mention that the charges for aggravated assault on Sergeant Taylor's brother involved a shooting. Thornton's counsel, however, introduced into evidence a police report summarizing Thornton's arrest. The report described the police chase and stated that Thornton was wanted on a warrant on an aggravated assault with a gun for shooting Sergeant Taylor's brother. Defense counsel did not seek to redact the report to remove the reference to the gun or a shooting.
During deliberations, the jury asked whether it could consider information from the report that was not discussed during the trial. Counsel agreed that since the report was in evidence the jury could do so and the District Court ...