Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Criminal Action No. 01-cr-00008E) District Judge: Honorable Maurice B. Cohill, Jr.
Before: Barry and Ambro, Circuit Judges,
DOWD,*fn1 District Judge
The opinion of the court was delivered by: Ambro, Circuit Judge
Submitted Under Third Circuit LAR 34.1(a) November 21, 2002
Jeremiah D. Toliver was convicted by a jury in the Western District of Pennsylvania of violating 18 U.S.C. § 922(g)(1) (possession of a firearm by a convicted felon). During jury deliberations, the District Court answered a jury question without first notifying either the defendant or defense counsel. Toliver argues on appeal that this violated his Fifth and Sixth Amendment rights to be present at every stage of trial, as well as his Sixth Amendment right to counsel.*fn2 While the District Court's manner of handling the jury's inquiry was incorrect, it nonetheless was harmless. Thus we affirm.*fn3
On April 3, 2000, the Erie Police Department received a 911 call from the home of Ethel Easter, stating an unwanted guest — Toliver — would not leave. Toliver had previously lived with Easter, but the two had separated. Toliver was present on this particular evening at Easter's invitation to have dinner, but after they had a dispute about another boyfriend of Easter's, she demanded that Toliver leave. He refused, and Easter called Toliver's mother, Anita Grey, with whom he lived, to come and get him. Toliver's mother arrived, but he protested that he would not leave until he retrieved his gun, which he believed to be in Easter's bedroom. Easter told him she would not return the gun because he was already on probation. After at least two hours of arguing, Easter and Grey could not persuade Toliver to depart, and Easter's 18-year-old nephew, Jason, called the police.
Jason met the police at the door, and led them upstairs toward Easter's bedroom. While on the stairs, the two officers and Jason heard a male voice say that he wanted his gun back, and would not leave the house without it. The officers entered the bedroom, where Toliver, Grey, Easter, and Justin Barnett (Easter's 15-year-old nephew) were present.*fn4 Easter told the officers that the gun was in the room inside her golf bag. The officers retrieved the weapon, a shotgun with a modified barrel and obliterated serial number.
The defense's theory at trial was that the gun belonged to Easter, a police dispatcher who feared she would be fired if charged with a crime. The defense called at least four of Easter's co-workers on the Erie police force to undermine her credibility, and each testified that they believed her to be an untruthful person.
The jury recessed at 12:05 p.m. on August 15, 2001. At 3:35 p.m., the District Court reconvened in chambers, with defense counsel participating by telephone, to discuss a response to a question submitted by the jury. Before doing so, the judge informed both sides that this actually was the second question the jury had asked, and that he had answered the first without notifying counsel. The following exchange occurred:
THE COURT: This is Judge Cohill. And we got a question here, and I just think — I know the answer, but I just wanted — we had another one, too, that I didn't — about fifteen minutes before the second one came in — I didn't need to consult with the lawyers on that.
Does that look okay to you?
THE COURT: This was question No. 1. I have Marshall Piccinini and Chris Trabold here, and I have got the Court Reporter. Anyway, question No. 1 was:
One question keeps coming up repeatedly — whether the male voice in the bedroom was heard to say
Quote: "Give me the gun" or
Quote: "Give me the gun back"
Can we check the testimony ...