Appeal from the United States District Court for the Middle District of Pennsylvania District Judge: Honorable William W. Caldwell (D.C. Criminal No. 02-cr-00055)
The opinion of the court was delivered by: Schwarzer, Senior District Judge.
Argued May 27, 2004 and On Remand from the United States Supreme Court by Order of February 22, 2005
BEFORE: RENDELL and COWEN, Circuit Judges, and SCHWARZER, *fn1 District Judge.
Aaron Agnew appeals his conviction for distributing crack cocaine and being a felon in possession of a firearm. He contends that the District Court erred in denying his motion to suppress physical evidence, and in preventing him from impeaching a witness with evidence of a sixteen-year-old forgery conviction. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 and we exercise jurisdiction pursuant to 28 U.S.C. § 1291. We will affirm the conviction.
FACTUAL AND PROCEDURAL HISTORY
Agnew was charged in an indictment with distribution of crack cocaine in violation of 21 U.S.C. § 841(a)(1), possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A).
Before trial, Agnew moved to suppress the fruits of the search in connection with his arrest. At the suppression hearing, Dauphin County Sheriff's Deputy Gary Duncan testified that he was assigned to the Fugitive Task Force charged with"the service of all violent felony warrants, drug warrants and any other cases referred to [it] from Dauphin County or the surrounding communities." Agnew's case was referred to Duncan's unit because Agnew had twice previously evaded capture by jumping from a second story window and by holding onto the roof rack of a passing car for a block and a half. Duncan had learned from an informant that Agnew"was at the residence [at 2740 Ludwig Street] and that he was to be in possession of a firearm, a revolver,... and that he was also to be in possession of some narcotics." Duncan checked with the Drug Task Force and learned that it had no investigations pending against Agnew.
Duncan and a group of other officers went to 2740 Ludwig Street. He and six other officers approached the front of the residence, and four or five officers were posted around the perimeter and at the rear of the residence. Some of the officers wore"raid gear," including bulletproof vests, and carried ballistics shields. Duncan testified that when the officers knocked on the front door of the residence and announced,"Police, open the door," he saw Agnew pull aside a curtain in a window of the home. He then heard"what sounded like scuffling inside, running around." Duncan testified that he"felt that due to the knowledge that [Agnew] had a handgun that we were compromised and we decided to take the door." The officers then entered the residence and apprehended Agnew as he ran up a flight of stairs. Once inside, officers noticed in plain view a clear plastic bag containing cocaine. They thereafter obtained a search warrant and found a.22 caliber revolver and fifteen grams of cocaine in the home.
The District Court denied Agnew's suppression motion. It found that the officers acted pursuant to an arrest warrant, and held that exigent circumstances justified the entry into the home.
The day before trial, the government made a motion in limine to prevent Agnew from cross-examining a government witness, Wyatt Dawson, using a sixteen-year-old forgery conviction. The court granted the motion at trial, stating,"I have read the motion and your brief. I am going to sustain the objection." Dawson subsequently testified that he had purchased crack cocaine from Agnew on numerous occasions and that he rented and lived in the residence at 2740 Ludwig Street. In addition to the testimony of an officer who searched the residence, the government also presented several witnesses who testified to buying crack from Agnew. Agnew himself took the stand and testified that the firearm and drugs were owned by Dawson, who was in fact the dealer who supplied Agnew with drugs.
The jury convicted Agnew of distribution of crack cocaine and possession a firearm by a convicted felon, but acquitted him of use or possession of a firearm during a of drug trafficking crime. He was sentenced to a term of 300 months' imprisonment for distributing crack and to a concurrent sentence of 120 months' imprisonment for possessing a firearm when a convicted felon. Agnew timely appealed to this Court. On appeal, we affirmed the conviction. See United States v. Agnew, 385 F.3d 288 (3d Cir. 2004). On February 22, 2005, the Supreme Court granted certiorari; in the same opinion, it vacated the judgment and remanded the case to this Court for consideration in light of United States v. Booker, 543 U.S. __, 160 L. Ed. 2d 621, 125 S. Ct. 738 (2005). See Agnew v. United States, __ U.S. __, 125 S. Ct. 1333; 161 L. Ed. 2d 94 (2005). In vacating the judgment, the Supreme Court did not indicate any disagreement with our analysis wherein we affirmed Agnew's conviction. Herein, we will again affirm the ...