On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 06-cr-162) District Judge: Honorable Donetta W. Ambrose.
The opinion of the court was delivered by: Jordan, Circuit Judge
Before: RENDELL and JORDAN, Circuit Judges, and PRATTER, District Judge.*fn1
Joseph R. Lee was convicted in the United States District Court for the Western District of Pennsylvania of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and was sentenced as a career offender to 120 months' imprisonment. He appeals both the conviction and his sentence. For the following reasons, we will affirm Lee's conviction but vacate his sentence and remand for re-sentencing.
On June 27, 2005, Lieutenant Kevin Kraus of the City of Pittsburgh Police Department traveled to the 2400 block of Webster Avenue in the Hill District of Pittsburgh, Pennsylvania to investigate a homicide that had occurred there the day before. Kraus was in an unmarked police car when he observed Lee, driving a blue Jeep Grand Cherokee, run a stop sign.*fn2
Kraus activated his siren and followed Lee to stop him for the traffic violation. Lee abruptly pulled over, and, according to Kraus, began making "rapid, suspicious movements," and reaching "down towards his torso area" as Kraus approached the car on foot. (Id. at 349.) All of the windows of the Jeep were down and the sunroof was open. Kraus scanned the car, and noticed a "rather large black heavy coat ... [with] a distinctive flap on the top" in the backseat of the Jeep. (Id. at 351.)He also noticed that the coat "appeared to be partially wrapped around ... a long, narrow object." (Id. at 351-52.) He took particular note of the coat because the temperature was over 90 degrees that day. Kraus further observed that Lee was wearing a tan bullet-proof vest and was not wearing a shirt. Lee volunteered that he had been trying to take off the bullet-proof vest. Kraus ordered him to raise his hands above his head and place them where Kraus could see them. According to Kraus, at that moment, he saw what he believed to be a black semi-automatic pistol lying on Lee's right thigh. After seeing the object, Kraus drew his own gun and told Lee: "Get your hands in the air. Don't move." (Id. at 353-54.)In response, Lee grabbed the steering wheel, said that he had to go, and sped away from the scene.
Kraus called the police dispatcher, reported that he had an emergency, and provided a description of Lee and the Jeep. Shortly thereafter, Kraus learned that another officer had found a Jeep Grand Cherokee matching the description of Lee's car. It was in a parking lot at the rear of the Christopher A. Smith Terrace Apartments (the "Apartments"), about a tenth of a mile from where Kraus had stopped Lee. Lee later stipulated that he abandoned the Jeep where the police found it.
Kraus went to the parking lot at the Apartments and identified the Jeep as the one that he had earlier stopped and in which Lee had fled. All the windows were still down and the sunroof remained open. The bullet-proof vest was lying on the passenger side of the vehicle. However, the coat and long slender object that Kraus remembered seeing in the backseat were no longer there. Four other officers were at the scene to aid Kraus in the investigation. During a search of the area, one of them, Kevin Faulds, found an AK-47 assault rifle beside a fence separating the Apartments from the next door Francis Court Housing Complex (the "Housing Project"). Kraus joined Faulds by the fence and observed the AK-47 partially covered in a black coat with a distinctive flap, lying against the fence. Kraus identified the black coat as the one he had seen in Lee's Jeep.
A police bloodhound named Digger and his handler, Officer Rudolph Harkins, soon arrived at the scene. Kraus informed Harkins that the other officers had already located the Jeep, rifle, and coat. Harkins gave Digger the scent of the Jeep's driver by wiping the driver's seat with a swab, offering the swab for Digger to smell, and giving the dog a command to track the scent. Digger then went down a flight of steps, through a parking lot, and came to within ten to fifteen inches of the rifle and the coat. According to Harkins, Digger then "veered to the right along the fence, [and] went down the fence line approximately 20, 25 feet." (App. at 458.) Digger found an area of the fence that had been ripped open, went through the opening, and continued towards the Housing Project on the other side of the fence. He stopped in front of the door of a vacant building in the Housing Project, and, at that point, circled and sat down, indicating that he had lost the scent. The building was searched, but Lee was not found.
Approximately two weeks later, on July 12, 2005, Kraus learned that fellow police officers had caught sight of and were pursuing Lee. They finally found him hiding in an apartment. No weapons or contraband were found on Lee at the time of his arrest, nor in the apartment where he was found. The police arrested him, took him to an interview room at the police station, and gave him Miranda warnings. He signed a form waiving his Miranda rights, and Kraus proceeded to interview him. Lee denied having any guns in his car when Kraus stopped him. However, he acknowledged that he had been wearing a bullet-proof vest. He said that he had started to take off the vest as Kraus approached the car because he wanted to create a diversion so that Kraus would not see a bag of marijuana that was in the car. Lee further explained that he drove away when Kraus drew his gun because he thought Kraus had drawn the gun in reaction to seeing the bag of marijuana. Kraus told Lee that he had not seen any marijuana but rather had seen a black semi-automatic pistol on Lee's lap. Lee responded that what Kraus had seen was actually a "black and silver cell phone flip-style open and extended on his lap." (App. at 414.)
According to Kraus, Lee "insisted that he does not typically own or carry guns. However, he did state that he had access to a lot of guns and would use them against anyone who threatens him or his family." (Id. at 417.) Lee also said that he had previously shot at a man named Ernest "Pickles" Harris and that there was a "long time, ongoing violent feud" between their two families. (Id.) Finally, while Lee insisted that he did not have any weapons with him during the traffic stop two weeks earlier, he admitted fleeing when Kraus had tried to stop him on an earlier occasion in 2000 or 2001 when Lee did have guns in a vehicle.
On May 3, 2006, a grand jury in the Western District of Pennsylvania returned a one-count indictment charging Lee with being a felon in possession of two firearms, a rifle and a pistol, in violation of 18 U.S.C. § 922(g)(1).*fn3 The rifle referred to in the indictment is the AK-47 that was found lying by the fence under a black coat, near the location of Lee's abandoned car. The pistol is what Kraus had allegedly seen on Lee's lap, although no such pistol was ever recovered.
Prior to trial, Lee filed several motions, including a motion to suppress audio tapes of his interviews, a motion to exclude the bloodhound evidence and for a Daubert hearing to test the admissibility of that evidence, a motion under Rule 404(b) to exclude the evidence of the bullet-proof vest and Lee's interview statements to Kraus, and a motion for judgment of acquittal with regard to the pistol on the jurisdictional ground that the pistol was not a firearm in or affecting interstate commerce. With the exception of a limited portion of the 404(b) motion that is not relevant to this appeal, the District Court denied all of Lee's motions.
At trial, over Lee's objection, the government introduced the statements that Lee made during his interview with Kraus and evidence that Lee was wearing a bullet-proof vest when he was stopped. Additionally, over objection, the dispatch tapes were played, and a transcript was provided to the jury. Finally, over objection, the District Court admitted evidence of Digger's efforts to track Lee. However, in light of a dispute over whether Digger had alerted at the coat and rifle, the Court noted that the government "agreed to eliminate any reference in the testimony that Digger paused" when he reached them. (App. at 2.)
At the close of the government's case, Lee moved for judgment of acquittal with respect to his alleged possession of the pistol. Even assuming that what Kraus had seen was a pistol, Lee argued, there was no evidence that the pistol had ever traveled in interstate commerce, as is required under 18 U.S.C. § 922(g). The Court denied the motion, and denied it again when defense counsel renewed it at the close of all evidence.
Throughout trial, Lee's defense with regard to the rifle was that it had never been in his Jeep and that he was not the person who disposed of it. Specifically, "[t]he defense (1) attacked the reliability of [Kraus's] observations, (2) offered evidence that others had an opportunity to have hidden the rifle in that crime-ridden area, ... and (3) stressed the complete absence of physical evidence tying Lee to the weapon and coat." (Appellant's Op. Br. at 63.)
The District Court instructed the jury that a conviction could be based on a finding that Lee possessed either a pistol, or a rifle, or both. The Court and the prosecutor told the jury that unanimity was required on any finding of possession as to either weapon, and jury interrogatories treated each weapon as a separate basis of criminal liability. On June 19, 2008, the jury found Lee guilty of possessing the rifle but not guilty of possessing the pistol. The Court subsequently sentenced Lee to 120 months of imprisonment, to be followed by a three-year term of supervised release, and a special assessment of $100. Lee filed a timely notice of appeal, challenging both his conviction and his sentence.
Lee advances six arguments on appeal: first, that "the rifle charge was prejudicially tainted by evidence offered to support the improper ... [pistol] charge"*fn5 (Appellant's Op. Br. at 19); second, that the District Court erred in allowing the government to introduce evidence that he was wearing a bullet-proof vest at the time he was stopped by Kraus; third, that the District Court erred in allowing Kraus to testify about the interview statements Lee made regarding prior weapons possession; fourth, that the prosecutor committed misconduct during his discussion of Digger, the bloodhound; fifth, that the District Court erred at sentencing by classifying Lee's state misdemeanor conviction for reckless endangerment as a crime of violence, thereby increasing the length of his sentence; and, sixth, that the felon-in-possession statute is unconstitutional. We address each argument in turn.
Lee argues that the District Court erred in denying his motion for judgment of acquittal on the pistol charge because there was insufficient evidence that the pistol, even if he had one, traveled in interstate commerce, which is a required element under 18 U.S.C. § 922(g). Although Lee was ultimately acquitted of the pistol charge, he contends that the District Court's error in permitting that charge to go to the jury entitles him to a new trial on the rifle charge, because the rifle charge was prejudicially "tainted" by evidence submitted to support the pistol charge. (Appellant's Op. Br. at 25.) In other words, Lee contends that there was prejudicial spillover from one charge to the other.
The parties begin with a debate about the standard of review we should apply when evaluating a claim that one criminal charge has tainted the jury's consideration of another. Lee argues that we should apply the test articulated in United States v. Pelullo, 14 F.3d 881 (3d Cir. 1994), in which we stated that, "[w]hen confronted with a problem of taint, we must 'consider whether the presence of the [invalidated] count had any spillover effect sufficiently prejudicial to call for reversal.'" Id. at 897-98 (quoting United States v. Ivic, 700 F.2d 51, 65 (2d Cir. 1983)). We must reverse and allow for a new trial if the jury was "probably influenced," id. at 900, or "'was likely to be confused or relied upon improper evidence' in its deliberations on the remaining counts." United States v. Murphy, 323 F.3d 102, 122 (3d Cir. 2003) (quoting Pelullo, 14 F.3d at 898). Even though Lee raised the invalidity of the pistol charge at trial, the government, citing United States v. Wright, 363 F.3d 237 (3d Cir. 2004), argues that plain error review applies because Lee did not argue prejudicial spillover before the District Court "in any relevant pleading, such as in a motion for a new trial." (Appellee's Ans. Br. at 3.)
The debate is misleading, as it seems to proceed from the mistaken presumption that the test articulated in Pelullo is a standard of appellate review. It is not. Rather, it is an analytical approach to assessing whether evidence from one charge unfairly affected consideration of another charge. In particular, we are here tasked with assessing whether what happened -- an acquittal on the pistol charge after hearing evidence on it -- means that the jury could not have fairly addressed the rifle charge. To answer that question, we employ the Pelullo test.
However, acknowledging that Pelullo must be applied to evaluate a claim of taint still leaves us to determine what standard of review to employ in a case like this, in which the issue of taint was never raised before the District Court. This appears to be an issue of first impression for us, and so we look to how we address challenges to the sufficiency of evidence as a guide for the appropriate appellate role in appraising post-hoc complaints about a verdict's basis.*fn6 Somewhat like an insufficiency of the evidence argument, an argument of taint asserts that, once the allegedly tainted material is removed from the jury's calculus, there is no sound basis to support the remaining charge.
When a sufficiency of evidence challenge has first been made in the District Court, we exercise plenary review on appeal and ask specifically "whether there is substantial evidence that, when viewed in the light most favorable to the government, would allow a rational trier of fact to convict." United States v. Bornman, 559 F.3d 150, 152 (3d Cir. 2009) (quotations and citations omitted). Though plenary, the "standard of review is highly deferential." Id. However, where a defendant does not mount a challenge to the sufficiency of the evidence in the District Court, we review for plain error.*fn7 United States v. Guadalupe, 402 F.3d 409, 410 n.1 (3d Cir. 2005). Analogizing to that standard, we hold that, because Lee did not raise the issue of taint in the District Court, we must evaluate his claim of taint -- through application of the Pelullo test -- under a plain error standard of review.*fn8
As discussed below, we conclude that Lee's claim of taint fails under Pelullo, evenwhen employing the more generous plenary standard of review. Accordingly, we have no difficulty concluding that his claim does not succeed under plain error review.
ii. The Merits of the Prejudicial Spillover Argument
The government contends that Lee's prejudicial spillover argument fails for two reasons. First, the government says that the District Court did not err when it denied Lee's motion for judgment of acquittal as to the pistol charge because there was sufficient evidence to allow that charge to go to the jury. Second, the argument continues, even assuming that the Court erred in denying Lee's motion, the rifle conviction can stand because there was no prejudicial spillover of evidence from the pistol charge.
The government's insistence that there was sufficient evidence to support the pistol charge is not its most persuasive argument. Indeed, it might have been the better part of wisdom not to have pressed for that charge to go to the jury. The pistol was never recovered, and the testimony about its make and, in turn, about whether it had traveled in interstate commerce, turned out to be a bit equivocal.*fn9 However, we need not address whether it was error to send the pistol charge to the jury because, even assuming it was, the government is correct that no prejudicial taint from that charge spilled over into the jury's consideration of the rifle charge.
An analysis of whether there was prejudicial spillover involves two inquiries. See United States v. Cross, 308 F.3d 308, 318 (3d Cir. 2002). First, if "the evidence to prove the overturned count would have been admissible to prove the remaining valid count, the defendant was not prejudiced, and there is no need to consider whether the evidence influenced the outcome." Id. In other words, if, in creating a hypothetical trial as to the valid count only, the evidence of the invalidated count would have been admissible anyway, the analysis ends there. Id.
If the evidence would not have been admissible, "then we must consider whether the verdict on the remaining count was affected adversely by the evidence that would have been inadmissible at a trial limited to that count." Id. "Generally, invalidation of the convictions under one count does not lead to automatic reversal of the convictions on other counts." United States v. Gambone, 314 F.3d 163, 180-81 (3d Cir. 2003) (citing Pelullo, 14 F.3d at 897).
As to whether evidence regarding the pistol charge would have been admissible in a trial only about Lee's possession of the rifle, Lee asserts that, had the District Court properly granted him a judgment of acquittal on the pistol charge, evidence relating to the pistol would have been stricken. According to Lee, the only reason for allowing evidence of Kraus's belief that he saw a pistol "would be to demonstrate Lee's propensity to carry firearms ... i.e., a person who carries a pistol on his lap is the type of person who also transports a rifle in his back seat." (Appellant's Op. Br. at 31.) Admission of such propensity evidence, Lee argues, is precisely what Rule 404(b) "is intended to prevent."*fn10 Id. However, even if we assume that evidence regarding the pistol would not have been admissible during a trial on the rifle charge alone,*fn11 Lee has failed to show that there was any prejudicial spillover.
In Pelullo, we established a four-part test to evaluate a spillover claim. We ask
(1) whether the charges were intertwined with each other ... so as to create substantial confusion on the part of the jury; . . .
(2) whether the evidence for the different counts was sufficiently distinct to support the verdict on other separate counts; . . .
(3) whether substantially all the evidence introduced to support the invalid conviction would have been admissible to prove other counts, and whether the elimination of the count on which the defendant was invalidity convicted would have significantly changed the strategy of the trial; . . .
(4) [whether] the charges, the language that the government used, and the evidence introduced during the trial ... are of the sort to arouse a jury ... [and] whether the defendant was branded with some terms with decidedly pejorative connotation ... so that the prejudicial spillover effect is palpable.
14 F.3d at 898-99 (internal citations omitted).
The first Pelullo factor asks whether the charges were sufficiently intertwined to create confusion on the part of the jury. Id. at 898. Lee argues that the charges did create confusion because a single-count indictment charged him with possessing both the rifle and pistol on the same date, and a single officer described the entire episode. While it is true that the pistol charge and the rifle charge were set forth together in the single-count indictment, and that both allegations arose out of the events of a single day, there was, on this record, no meaningful risk that the jury was confused when asked to consider the two charges.
The proof of the jury's comprehension is that it found Lee guilty of possessing the rifle but not guilty of possessing the pistol. Clearly, it was able to separate the issues and the charges, and it did so, in keeping with the District Court's instructions. The Court said,
In order to find the defendant guilty, you must unanimously determine that the defendant specifically possessed the rifle, or the pistol, or both. For example, it is not sufficient for six jurors to agree that the defendant possessed the rifle and the other six to agree he possessed the pistol. Rather, the verdict slip indicates that all jurors must agree on which weapons, if any, the defendant possessed.
(App. at 601-02.) Questions about the pistol and the rifle were also set forth separately in the special interrogatories attached to the verdict form. In addition, in closing argument, the prosecutor emphasized that the jury needed to consider the pistol charge and the rifle charge separately, saying,
[Y]ou have to find that the defendant possessed the rifle or possessed the pistol or possessed both. That means all of you as a whole. As the Judge told you, six of you can't say, we believe that he possessed the rifle, and the other six say, we believe he possessed the pistol. That's not enough. All twelve final jurors have to ...